Despite his ample experience with sanctions, Vladimir Putin should not be your go-to source for advice on their legality.
Following Putin’s announcement of further military deployments into Ukraine and a televised Russian Security Council meeting that seemed to terrify even his own spy chief, speculation abounds as to whether Russia will be subject to further US, EU and UK sanctions and, if so, what those sanctions might look like.
This, of course, is an issue that is, quite literally, close to home for me. While I am currently roughly 15,000 kilometres away, the ancient wisdom says that home is where your dog is. By that metric, my life is still firmly centred in Kiev, which I heretically prefer to spell the traditional way for reasons I’ll explain some other time. (Generally, when speaking to a Ukrainian, ‘Kyiv’ is the safer option.)
Substantively, there is little new left to say on sanctions. The economic battle-lines have been drawn for some time. We know the available range of half-a-dozen options but neither which ones will be used; nor whether the EU will achieve the necessary internal consensus to match US-imposed sanctions; nor what will be deemed a sufficient trigger for their use (although, as I write this on Tuesday 22 February, the UK has announced its intention to ramp up Russia sanctions). As I have argued on Twitter, there is scope for further creativity in diplomatic reprisals — from expulsion from the Council of Europe to enabling private claims in foreign courts for damages sustained in Eastern Ukraine — but, frankly, none of this would be a game-changer.
Against this sombre backdrop, my principal point here will be rather trivial, but perhaps not wholly devoid of interest. Every time that Russia faces a new wave of sanctions, be it as a result of foreign invasion or domestic repression, its leaders make a statement that such sanctions violate international law. This time around, Putin lamented that sanctions issuers ignore ‘all rules of international law‘.
The problem with this statement is it’s simply incorrect as a matter of international law. No state is obliged to trade with another state, nor to grant admission to its citizens. Of course, sanctions can breach international law if they run counter to an identifiable legal obligation, such as under a bilateral treaty (see Iran’s claims against the US in the International Court of Justice), WTO rules or international human rights law. Russia’s contention, however, is both radical and bizarre — in its view, sanctions can only be lawfully imposed by the UN Security Council, lest they should be ‘an infringement on countries’ sovereignty and interference into their domestic affairs’.
Some have argued that unilateral sanctions constitute an exorbitant and therefore unlawful exercise of extraterritorial jurisdiction. The application of jurisdictional rules under international law to sanctions is a genuinely complex and uncertain area. However, two principles are reasonably well-established. First, states cannot undertake enforcement action, such as freezing assets, in another state’s territory. Second, for a state to seek to regulate a foreign national’s behaviour, a reasonable connection should exist between the conduct in question and that state’s interests. That second principle goes to the heart of why so-called secondary sanctions — e.g. the US prohibiting an Italian company from trading with Iran in the absence of an analogous Italian prohibition — are so controversial. But, secondary sanctions aside, neither of these two principles precludes unilateral economic sanctions.
In short, Putin is dead wrong on sanctions. Without wishing to be rude, I suspect this may not be his biggest flaw. What is mildly interesting, though, is that every once in a while one encounters the perception that the Russian state apparatus, problematic though its policies may be, relies on excellent lawyering in its interactions with the world. I’m somewhat sceptical of this purported tradition of legal excellence, not least based on the Russian government’s — and, sadly, Russian legal academia’s — rather facile attempts to defend the indefensible in the wake of Crimea’s annexation. So far, its rhetoric on sanctions further confirms this is a government that simply says whatever is convenient, including in matters of international law.
Economic Crime Law 