I have prepared my presentation in English. First of all, I would like to thank the organizers of this excellent conference for very representative and very interesting presentations. The central topic of my presentation will be dealing with the issue of the issue of sanctions. And I decided to abstract myself in this presentation from political or sociological aspects, and to present a picture what can be described in terms of legal dogmatics.
First of all, regarding the title of my presentation, I would slightly change it: I would like to make it more concrete. I would introduce as a sub-title another sort of a sentence: How to make Russia stop war against Ukraine, and how to liberate occupied Crimea and Donbas by using sanctions. Whether we can do it, or we are helpless.
First of all, there is some confusion in the legal literature, in international legal doctrine. Even in national legal doctrine and theory regarding the concept of sanctions. Sanctions can be understood differently. At the risk of oversimplifying things, I offer this definition as the most common definition of sanctions. By legal sanctions we mean a reaction of the legal community against a delict, or against a violation of law, in this case violation of international law. As you can see from this definition which is a definition with a sort of Kelsenian touch, by a sanction we mean a reaction of the community. In other words, legal sanctions, including international legal sanctions, is a negative reaction at the violations of law, which might have not only unilateral, but also multilateral character.
At the same time, there are other terms which are widely used, and this is the source of constant confusion in theory and practice. For example instead of the term “sanctions”, the International Law Commission in its Articles on the state responsibility prefers to use the term “countermeasures”. At the same time, in legal international literature in Russia, for example, specialists on international law are talking about two kinds of countermeasures: countermeasures and sanctions. And to them sanctions are those countermeasures, which are used, which are enforced by the international organizations, primarily by the UN. Interestingly enough, when we take a look at the UN Charter, we will not find a term “sanctions” used in this document. We can find only the term “enforcement actions”. And sometimes in the legal literature there is a confusion regarding the term “sanctions”, the concept of “sanctions” is equated with such concept as forms of responsibility like, for example retorsions, reprisals and so on.
There are certain pre-requisites for the use of sanctions. First of all, sanction is not a direct reaction to the committed crime. We are talking about sanctions when the tortfeasor (in other words the country, which has violated law) refuses to comply with its responsibilities, when it refuses to rectify the damage done and to bear responsibility. In this case, we are talking about sanctions as a reaction against refusal to obey, to bear international responsibility.
This is an example of how the terms “sanction” and “countermeasures” are understood by, for example, Igor Lukashuk, one of the biggest authorities in Ukraine and in Russia. This is how he understands sanctions and countermeasures.
What is the Russian position regarding sanctions? Basically, the specialists in international law in Russia justify their position on two grounds. First of all, they argue that sanctions against Russia are not lawful; they are in violation of international law because, according to these so called specialists, only the UN Security Council is competent to take sanctions. So, without Security Council we cannot talk about sanctions. This is a kind of common position in Russian legal literature. Again, this is a problem of terminology. Because, broadly speaking, sanctions can be applied unilaterally. They don’t necessarily need a permission on the part of the Security Council, they don’t need a special resolution of the Security Council. So, in other words, this justification, this position is absurd. The second argument put forward by Russian specialists in international law is that sanctions can be enforced only by the victim of the breach of the international legal obligations in relation to the violating state, not by other states.
This is an example. Here is a quote from one of the recent articles published in the Moscow Journal of International Law by very prominent Russian specialists. This is what they say regarding sanctions. So, according to them only a victim can resort to sanctions against a violator, not any other country which is not a victim. They also tend to be a little bit bureaucratic in this respect. According to them, Ukraine claiming to be a victim of violations of international law on the part of Russia should have first introduced its claim in appropriate legal form and then other countries like the US, UK, they have no right to defend Ukraine, because they are not victims of this violation, Crimea’s annexation. So, this is their position which runs counter to international law.
Article 48 of the ILC’s Articles on Responsibility of States for internationally wrongful acts, which is called “Invocation of Responsibility by State Other than an Injured State” says that other States which were not injured by the violation of the international law nevertheless can also make the violator to comply with the international legal responsibility.
A little bit of theory regarding the sanctions. We can talk about different kinds of sanctions. Mostly we are talking about economic sanctions now. But at the same time, we can also talk about diplomatic, political, and, in terms of self-defense, we can talk about military sanctions, sort of armed reprisals.
Economic sanctions can be classified into two broad categories. The first one is the institutional sanctions which applied, enforced by the UN, for example, and by the international organizations. And we can also have individual countermeasures applied by separate states.
Who can be a subject taking decision to apply sanctions? It can be a state, several states, and it can be an international organization.
It should be also born in mind that sanctions have specific functions. They are meant to perform certain functions. First of all, sanctions are used with a goal to make a state to change its policy. A tortfeasor, a state, which has committed a violation of international law, should change its policy and comply with its international legal obligations. Second function is the realization of the international legal responsibility. It should rectify the damage done and so on. And finally, we should also keep in mind the final sort of function, prevention of crimes in the future. The state, the tortfeasor should be prevented from violating international law, international obligations in the future.
Regarding subject matter of sanctions, among these we can distinguish moral pressure. The torteasor is subjected to moral pressure on the part of the international community. It can be deprived of some rights. Or instance, its assets can be blocked. And finally, (I have taken it from the contemporary literature on economic sanctions) even some measures regarded as economic war can be used against the violator.
Who are the addressees of the sanctions? It can be a state. For example, in our case it’s Russia as a state. But natural persons and legal persons can also be addressees and should be addressees of the sanctions.
What I consider to be really important regarding sanctions against Russia. First of all, we should try to answer for ourselves the question: do we need sanctions for the sake of sanctions, without regard for the ultimate outcome, for the final result, or should we talk about what I would call as “result-oriented sanctions”, in other words, sanctions aimed at reaching a concrete goal, a concrete result. And what should be the result? First of all, the final outcome of the sanctions should be restoration of the territorial integrity of Ukraine; complete liberation of its territory, First of all, liberation of Crimea. Then, we should also remember in this case that to achieve this goal we need a strict timetable depending on the effectiveness of the sanctions, depending on whether they are conducive to the achievement of this goal or not. And also we have a sort of a minimum program and maximum program regarding sanctions against Russia.
I will present my subjective point of view on this. To me, there are two kinds of the sanctions mechanisms that we can use, two international sanctions mechanisms. The first one is related to the Security Council, and the second is about the Budapest Memorandum. A few words regarding the Security Council. The interesting thing is that the Council can be used as a sanctions mechanism, especially in the light of the Chapter 7, Article 41 and 42. The only problem with the Security Council is that the aggressor considers itself to be a permanent member-state of the Security Council. However in reality (i.e. from a strictly legal point of view) Russia is not a member state of the UN at all. I have published in 2014 an article and I did my research regarding this issue in which I came to conclusion that legally, from a strictly legal point of view, Russia is not a member of the UN, because Russia is using the concept of the state-continuator of the USSR. And to me as a lawyer it runs against international law, it’s a violation of the UN Charter, and it also runs against common sense and logic, because the USSR and Russia have always been two different subjects of international law and two different states. And regrettably, there was only one person who noticed this; there was only one article published in the 1993 by a specialist from Israel on international law. He noticed this sort of paradox and violation.
There is an interesting example in the UN practice - a case of Serbia, because Serbia didn’t join automatically the UN. The Russia also should have performed all this procedures, like Serbia, to become a member-state. And to tell you the truth I don’t quite understand why Ukraine is not eager and so reluctant to raise this issue. Because you know that the Russian specialists on law like to talk about legitimacy. However, but they don’t have legitimacy in terms of membership in the UN. And I think that we should talk about this openly. What I would recommend here to do? It’s not about expulsion. It’s not about change the UN Charter. It’s about non-recognition of Russia as a member of the UN. And I think that our diplomacy should talk about this openly. So, in other words, if we manage in this way to deprive, so to speak, Russia of its veto power, we can use as a sanction mechanism the Security Council.
Another interesting point to which I would like to draw attention, it’s also related to the Security Council. You know that Russia and Russian President like to talk about Minsk agreements, and they need to perform Minsk agreements because to Russians Minsk agreement, according to Russia, is legally binding. They make reference to the Security Council Resolution, in which Minsk Agreements are mentioned. But the interesting thing here is when you start reading this text carefully; you notice that one of the key requirements is that the foreign troops should be withdrawn from the territory of Ukraine. And when we are talking about the territory of Ukraine, we mean the whole territory of Ukraine, within internationally recognized borders, including Crimea. So, if we are treating this document from the legal point of view, when we interpret it literally, Russia should withdraw its troops from Crimea under the Minsk Agreements, which it considers to be legally binding on the basis of the Security Council Resolution. This is legal logic.
And, finally, a few words on the second sanction mechanism. There is a very disturbing tendency in the Ukrainian political discourse to disregard the Budapest Memorandum. There is a trend to call it just a scrap of paper, which we should forget. And this is exactly what Putin wants us to do. What is the Budapest Memorandum? Whether it is an international treaty which is legally binding under international law or whether it is a political agreement having only political force, or something else. It’s an open question, I agree. But what matters is a promise which was given to Ukraine, a promise regarding its territorial integrity, security and sovereignty. And this promise should be fulfilled. And I believe that Ukraine should remind about this promise every day all the countries which are the states-guarantors, including China, for example. And on the basis of this document, what I would do, again, it’s my subjective point of view, we should present our allies with a sort of an option: we have two choices, if we want to be completely honest. The first choice is the effective mechanism of sanctions, economic, political, and diplomatic leading to the total isolation of Russia. If these sanctions don’t prove effective enough, then on the table should be another choice: military operation liberating Crimea, consisting of the military contingents of the UK, the US, China, and France. In other words, consisting of the troops of the states-guarantors of the Ukrainian territorial integrity and security. We shouldn’t forget about this option. I understand that it might be too politically risky, but it should be also on the table.
To summarize my presentation, I believe that we should keep in our mind, first of all, the concrete goal, and the mechanisms of sanctions should be effective enough to reach this goal, and we should have a strict timetable to reach this goal. Thank you for your attention!
*Information about the author:
Dr., Prof. Oleksandr Merezhko, Kyiv National Linguistic University
The article is based on the address at the International Conference " Violation by Russia of International Law: Consequences for the World"