Oleksii Plotnikov, PhD, International Judiciary

The legal nature of the sanctions associated with the attempted annexation of Crimea is multifaceted. Weak understanding its specifics makes difficult to achieve the strengthening and prolongation of sanctions, as well as their effective implementation.

On Monday 4th of October, information appeared that the ambassadors of the EU member states agreed to expand the sanctions list against those involved in undermining the territorial integrity of Ukraine. Reportedly, it included “judges”, working in the occupied Crimea. [1] Such news comes regularly, and the word “sanctions” is firmly embedded in the Ukrainian political lexicon. This word denotes such different measures, introduced under such different procedures, that it is easy to get confused. However, let’s try to figure out what is meant by the Crimean sanctions, and what their application means in practice.

One can recall from the legal theory, that a sanction is an element of a legal norm that establishes the negative consequences that occur for violations of this norm. A fine for a traffic violation is precisely a sanction. Sanctions exist in all branches of law, including international law. The key difference is that in national law the sanction is implemented by the state, which is the only supreme arbiter in relations between people, while in international law there is no such supreme arbiter. Sanctions can only be discussed within the framework of international organizations, when the highest governing body of the organization can apply certain negative measures to the violating state under the law of this organization.

Such sanctions can be imposed by the UN Security Council on a state that violates international peace and order. For example, until 2020, there existed an embargo on arms supplies to Iran, imposed by the UN Security Council. It represented a sanction. After 2020, some states decided to keep the ban on their own initiative. Such unilateral actions, from the point of view of the theory of international law, are no longer sanctions, but retortions, that is, unfriendly, but legitimate actions of one state against another state, as a rule, aimed at prompting such a state to stop the behaviour that the first state considers illegal.

Retortions, in turn, should not be confused with countermeasures, which are legitimate actions by a state suffering from a violation of international law to force the offending state to cease the violation. For example, Ukraine can use countermeasures against Russia, since it suffers from Russia’s illegal behaviour. In addition, it is important that sanctions, countermeasures, retortions, etc. are applied by states in relation to other states or their representatives, and not in relation to individuals.

Such an excursion into the theory of international law was necessary in order to convey to the reader the understanding that what is usually called sanctions are in fact a variety of procedures with very different grounds for application and degree of validity. The word “sanctions” can be understood as measures of some states against other states based on international law, and measures of a predominantly political nature.

It should be noted that, as such, international legal sanctions in connection with the occupation of Crimea have never been applied. They can only be introduced by the UN Security Council where Russia veto power making the introduction of sanctions practically impossible. What is called “Crimean sanctions” is actually a set of measures that are applied by individual states (for example, the United States) and regional interstate associations (like the European Union). Of such measures, the closest thing to sanctions in the international legal sense is the sanctions of the European Union. They are of the greatest practical importance.

Why did the European Union apply what is known as the “Crimean sanctions”? The attempted annexation of Crimea did not affect the territories of the EU member states, and none of them suffered from the unfriendly actions of Russia. The answer lies in the so-called common foreign and security policy of the EU, which provides for the creation of an area of ​​stability and security at the borders of the EU. This policy involves conducting joint operations with neighbouring countries that adhere to the principles of international law and democracy, along with a negative impact on countries that violate international law, the principles of democracy, the rule of law and human rights. The EU defines such impact as sanctions of a diplomatic or economic nature [2].

Angela Merkel described the goals of the Crimean sanctions very frankly: “The restrictive measures against Moscow will be lifted when the reason why they were introduced disappears. The attempted annexation of Crimea is, in fact, not just an annexation. This is a violation of the values, thanks to which the European world order was created after the end of the Second World War, namely, the recognition of borders and respect for territorial integrity” [3]. Therefore, by applying sanctions against the state, which by its aggression created a dangerous case of attempted annexation for the first time since 1945, the EU protects not only and not so much Ukraine, but itself, its borders, and the principles on which it is based.

The first sanctions against individuals, who were involved in the occupation of Crimea by Russia, were introduced by the EU in March 2014. They touched upon the self-proclaimed leaders of the Russian occupation “authorities” in Crimea and individual Russian politicians who contributed to the occupation of the peninsula. These sanctions were of a diplomatic nature and were directed against specific individuals, however, as such, they did not yet harm the aggressor state directly.

Of much greater practical importance were the so-called sectoral sanctions, the introduction of which was largely facilitated by the destruction of the MH17 flight. These sanctions included a ban on the sale of weapons and materials necessary for their manufacture, a ban or restriction on the supply of a number of technologies, and a ban on the access of a number of Russian banks to European markets. In 2014-2017, the imposition of the sanctions was constantly supplemented and expanded.

Within the framework of this essay, it is impossible to describe all the imposition of the EU sanctions. Much more interesting is how the aggressor state is trying to cancel or at least bypass the EU sanctions. This can be illustrated by the examples of the case in the EU court one the claim of the Russian “Rosneft”, and the claim of “Siemens” in the Russian arbitration court.

“Rosneft” applied to the High Court of England and Wales against the actions of the United Kingdom in accordance with the decision of the EU Council of July 31, 2014, according to which Russian companies lost access to financial instruments of the EU countries. The British court decided that the case involved interpretation of EU law and referred the case to the European Court of Justice. The latter confirmed the validity of the EU decision and its direct effect on the territory of the EU member states. In particular, it stressed that the decision of the EU Council should be considered as prohibiting companies registered in an EU member state from concluding agreements with companies from countries against which the EU applies sanctions [4].

An opposite example is the application of “Siemens Gas Turbine Technologies” LLC to the Moscow Arbitration Court with a claim against “Techpromexport” LLC (both legal entities registered under the laws of the Russian Federation) to invalidate the contract for the supply of gas turbine equipment concluded under the influence of deception. The fact is that the Russian Siemens was a subsidiary of the German “Siemens” AG, which was supposed to operate in accordance with EU law. The turbines, allegedly supplied for use on the territory of Russia, were used by the Russian customer company in Crimea in violation of European sanctions. That is, in fact, there was a delivery of prohibited high-tech goods to Crimea through a formally Russian intermediary firm. At the same time, the German Siemens itself was not going to violate the EU sanctions.

The Russian court did not find a violation. In its opinion, the Crimea and Sevastopol were allegedly “part of the Russian Federation”, in which “EU law does not apply”, and any restrictions on the supply of goods to these territories can be allegedly “established by Russian law only”.

The decision of the Russian arbitration court clearly demonstrated that European high-tech companies, in principle, should not deal with Russian counterparties, since on the one hand, the EU decision on sanctions is binding on legal entities registered in European countries, and on the other hand, it is impossible to bring to justice a Russian company that violates European sanctions, in a Russian court. However, compliance with the sanctions regime depends primarily on the good faith of European companies. The European Union itself does not have the capacity to enforce its sanctions in cases of the use of intermediary firms.

Moreover, as the “ARC” previously wrote German “Siemens” turbines did end up in the Crimea again, and our attempts to draw the attention of EU authorities to a clear violation of the sanctions regime have not yet been too fruitful [6].

Unfortunately, non-EU states and organizations registered outside the EU have little opportunity to use the European legal mechanisms against violators. We can only hope for publicity, diplomatic pressure, and ultimately on the conscience of European officials and businessmen, for whom the conduct of a joint foreign policy to protect human rights and democracy should be more important than profit.

It is also worth noting the current attempts by Russia and its friendly authoritarian regimes to discredit the very concept of sanctions on international political and legal platforms. In particular, the importance of mechanism of the UN Special Rapporteurs on the negative impact of the unilateral coercive measures on the enjoyment of human rights, established in 2014, which should develop UN approaches to assessing the current practical situation with sanctions, cannot be ignored. It is noteworthy that the regimes of communist China, Iran, Cuba, Russia, Syria, Venezuela, Zimbabwe [8] as well as the “independent non-governmental structures” of these countries [9], were willing to comment on the Special Rapporteur’s report to the UN Human Rights Council. At the same time, the EU stated in its communication to the UN Special Rapporteur that restrictive measures the EU imposes autonomously comply with international law, including with the obligations stemming from international human rights law, international humanitarian law, and international refugee law. Where persons and entities are targeted by sanctions, EU diplomats added, their fundamental rights are respected, as required by the EU Treaties and the EU Charter of Fundamental Rights, including the due process rights of the listed persons and entities, in accordance with the caselaw of the Court of Justice of the European Union [10].

In turn, the ARC, in its submission to the Special Rapporteur on this issue, pointed to the sanctions policy of Ukraine since 2015 as a tool to minimize Russian aggression, counter the militarization of the Crimea, stop international crimes and systematic human rights violations on the peninsula, including combating oppression of indigenous peoples, ethnic, linguistic and religious groups [11]. The position of the “ARC” for the UN Special Rapporteur posted on the UN web resources described the legal and organizational sanctions procedures of Ukraine and outlined the prospects for improving the sanctions mechanisms [12]. So far, the summary report of the UN Special Rapporteur on these issues is not publicly available [13], but in the future we should expect increased lobbying by undemocratic states on their own position on UN sanctions.

Sources:

1. https://www.eurointegration.com.ua/news/2021/10/4/7128591/

2. https://eeas.europa.eu/topics/common-foreign-security-policy-cfsp/420/common-foreign-and-security-policy-cfsp_en

3. http://irbis-nbuv.gov.ua/cgi-bin/irbis64r_81/cgiirbis_64.exe?C21COM=2&I21DBN=UJRN&P21DBN=UJRN&Z21ID=&IMAGE_FILE_DOWNLOAD=1&Image_file_name=PDF/EkUk_2017_2_7.pdf

4. https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170034en.pdf

5. https://www.dw.com/ru/кассационные-жалобы-по-делу-о-крымских-турбинах-siemens-отклонены/a-44228916

6. https://arc.construction/13312         

7. https://www.belta.by/interview/view/o-naznachenii-spetsdokladchikom-oon-i-negative-ot-sanktsij-v-uslovijah-pandemii-7255/

8. https://www.ohchr.org/EN/Issues/UCM/Pages/HRC48-report.aspx

9. https://www.ohchr.org/Documents/Issues/UCM/ReportHRC48/NGOs/submission-federation-trade-unions-belarus.pdf

10. https://www.ohchr.org/Documents/Issues/UCM/ReportHRC48/Other/submission-european-union.docx

11. https://arc.construction/12951

12. https://www.ohchr.org/Documents/Issues/UCM/ReportHRC48/NGOs/submission-association-of-reintegration-of-crimea.pdf

13. https://www.ohchr.org/EN/Issues/UCM/Pages/Reports.aspx