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Summoning Solidarity Through Sanctions

Time For More Business and Less Rhetoric

08.06.2022

While the EU, US, and allies are increasingly imposing sanctions against Russia for its use of force in Ukraine, not as many followers have been attracted to join the sanctioning measures as expected. Solidarity was displayed by the overwhelming vote on the UNGA resolution, which condemned Russia’s use of force, calling for an unconditional ceasefire. But states, especially those that voted in favor of the resolution, hesitate to take any further steps other than an expression of sympathy. Pragmatic considerations, notably the fear of losing material interests by reducing connections with Russia (such as trade, finance, energy security, arms and food supply) and concerns over the political consequences of siding with the West, are the main reasons why states do not succumb to repeated pressure from the West to join in sanctions of a country that has violated a peremptory norm under international law. Developing countries are particularly reluctant to answer the West’s call for sanctioning Russia. The Presidents of Brazil and Mexico have explicitly announced a neutral stance regarding Ukraine and would not impose sanctions on Russia. The ASEAN states (except for Singapore) and African countries cautiously avoided addressing Russia’s role in the current military conflict (see here and here) and refuse to announce any sanction against Russia so as to stay out of foreign power struggles (see here, here, here, and here). Even Israel, a firm-ally of the West, refuses to enact official sanctions against Russia out of concern that open support for the West could deteriorate its already delicate relationship with certain countries, especially Syria and Iran (see here).

Put simply, the disparity between what states say and what states do reveals an awkward reality: mere normative rhetoric does not always override the rational calculation of state interest, even when the international obligation breached is of a peremptory character. Against this backdrop, this blogpost observes that the reasons for the Western states’ difficulty to summon other states to join in sanctioning Russia are threefold: firstly, international law as it stands does not oblige states to join decentralized sanctions initiated by other state/state groups, even when the sanctions are launched for defending collective interests. Secondly, under current international law framework, joining in decentralized sanctions may incur negative legal consequences upon states. Thirdly, the Western states’ own practice has created an impression of double-standard reactions to international law violations, undermining the credibility of the Western states rhetoric that the sanction imposed against Russia is for global justice. Based on these observations, this blogpost proposes that alongside adding favorable leverages in negotiation, the West could change the manner in which it makes requests of other states, and admit its own self-interest in making such requests in the present situation, so as to respond the rising criticism of the West’s double standard.

Neutral Stances in International Law and the Obligation to Cooperate

International law generally does not prohibit states from maintaining a neutral stance in armed conflicts. Neutral states are free to decide whether and how they maintain relationships with both belligerent states, and other states not directly involved in armed conflicts, as long as neutral states treat belligerent states equally. Possible exceptions may be found in situations where the UN Security Council issues a resolution that imposes sanctions against Russia pursuant to Article 41 of the UN Charter, which have a binding force on UN member states seeing to its implementation. However, given Russia’s veto in the Security Council, it is unlikely that the Council would adopt a sanction against Russia.

Another exception to neutrality may be found in Article 41 of the Draft Article on Responsibility of States for Internationally Wrongful Act (hereinafter the ARS), which imposes states’ secondary obligations to “cooperate to bring to an end through lawful means any serious breach of peremptory norm of general international law” and “not to recognize as lawful a situation created by that serious breach, nor to render aid or assistance in maintaining that situation.” The International Court of Justice has implicitly recognized the rationale of all states’ obligations to cooperate under Article 41 in the Wall (2004) and Chagos (2019) Advisory Opinions, when the violations involved aggression and the right to self-determination, both attained the peremptory norm character. However, despite the acknowledged authority of the ARS as codification of international law, it is not a legally binding instrument, therefore it is unlikely to be invoked to oblige states to join sanctions against Russia. Moreover, it remains in dispute as to whether the obligation to cooperate under Article 41 of the ARS has been sufficiently consolidated by state practice and opinio juris.

Ironically, Western states have been strongly opposing recognition of a customary law status of the obligation to cooperate to end a serious breach of peremptory norms. This would undermine the credibility of the Western states’ call for cooperation this time. In the ILC’s Draft Conclusion on the topic, “Peremptory norms of general international law (jus cogens)” submitted to the UNGA in 2019, the ILC intended to incorporate this obligation in Draft Conclusion 19 as a reflection of customary international law and Draft Conclusion 19 took an almost identical form as Article 41 of the ARS. Many Western States object to this move, arguing that there is not sufficient state practice and opinio juris in support of it. In the written comments submitted to the ILC in 2021 on this topic, the USA “strongly objects” to this draft conclusion, which echo the stances of Israel, Australia, Japan, Italy, the Netherlands, and the UK. Interestingly, Russia did not object to acknowledging the customary character of the obligation to cooperate. It merely suggested to change the form of the final outcome from draft conclusion to draft articles, so that the content of this obligation could be better consolidated. The resistance of many Western States in accepting this obligation can be traced to their continuous disagreement with the majority opinion of the international community regarding the appropriate measures to take in the face of violations of peremptory norms, notably the use of force and violations of humanitarian law in the Israeli situation, and the previous use of force in the Middle East, for which some Western States are responsible. Nevertheless, several Western States’ denial of the existence of a customary law-based obligation would undermine the credibility of their claim that such cooperation is needed to defend international law – which is the rhetoric that these states are using in calling for cooperation against Russia, for instance in the EU-China Summit on April 1, 2022.

General Prohibition to Coerce Non-Cooperators

The right of states to maintain neutral in international armed conflicts is protected by the principle of non-interference with the domestic affairs of sovereign states. According to the 1970 UNGA Friendly Relations Declaration (which is acknowledged as a reflection of the general international law principle), no state may use or encourage the use of economic, political, or any other type of measure to coerce another State and obtain from it the subordination of the exercise of its sovereign rights, or secure advantages of any kind. While disputes exist on the standard of coercion, the general prohibition of coercion means that the West runs the risk of violating international law if it threats to impose additional sanctions on other states if they refuse to join in the sanction against Russia (see here). The West’s criticism of the coercive means taken by other states, and the development of their own legal tools to counteract these measures (see here for the EU Proposal for a Regulation on the protection of the Union and its Member States from economic coercion by third countries) would also undermine its standing to require other states to change their behavior towards Russia by threatening to adopt sanctions: it would be blatant double standard.

Negative Legal Consequences of Joining the Sanction Against Russia

Moreover, under current international law, joining decentralized sanctions may incur negative legal consequences upon the participating states. One essential problem is the sanctioning states’ responsibility towards Russia and Russian persons (natural and legal) if the sanctioning measures impair the interests of the targets. The 2001 ARS provides that the wrongfulness of countermeasures are precluded (Article 22). However, the wrongfulness-exempting effect of countermeasures is applicable only to measures imposed against the violating state, NOT to measures targeting private entities of the violating state. This means that states shall bear the responsibility for adopting targeted sanctions that infringe on the rights of private persons within the jurisdiction of the target state, and for causing damage to third states as a result of the secondary sanction effect, which to compensate may lead to lengthy litigations and costly obligations.

In the present situation, the West has called on states to sanction not only Russian state organs and designated officials, but also Russian private persons that, according to the West’s assessment, can influence the Russian government’s decision-making. However, assessment and information provided by the West does not automatically obtain an evidentiary effect in a third state’s legal system. Therefore, the neutral states may not impose sanctions against Russian persons based on information provided by the West without verification of its evidentiary value in accordance to domestic law, which may take long time. Should such sanctions be adopted, they may be accused of lacking legal and factual basis, thus leading to soaring litigations concerning the right to property in domestic and international courts against the sanctioning states.

Furthermore, sanctions on private persons without explicit legal basis and legal standard may have a long-term chilling effect on foreign investment in the sanctioning state, which would especially deter states that have maintained long-term trade and investment relations with Russia (notably the Middle East and African countries). For these states, the imminent risk that Russian investment would be withdrawn overweighs the fear of “reputational damage in western countries”, which is the primary rationale the West has relied on when calling for cooperation in sanctioning Russia.

The Problem of Double Standard

Besides the legal obstacles to summon states to join in sanction against Russia, the West’s own long-time non-reaction toward breaches of peremptory norms attributable to allies – notably the US and Israel, where virtually no sanctions were imposed against the perpetrators (see here) – also undermines the West’s credibility when invoking international law calling upon other states to join the sanctions. In the law of state responsibility, mere protest is not an implementation of state responsibility (ARS commentary, part III). Clearly, the Western States did not hold their fellow Western allies responsible for serious breaches of peremptory norms in the past. This reasonably leads to criticism in the present situation, namely, that requesting other states join in sanctioning Russia, and accusing those who refuse of disrespecting the rule-based international order, is evidence of a “double standard” (see here, here and here). Several Western politicians, and many international law scholars, call such criticism “whataboutism” that distracts attention from the ongoing armed conflict (see here for one example). However, such critiques are of practical value in the sense that they reveal the discontent of many non-Western States’ with the West’s selective enforcement of international law, and a distrust of the West’s moral and legal standing, as well as their ability to speak on behalf of the international legal order, which they do not always respect.

Several factors are particularly irritating to the discontent states. First, Western states perceive breaches committed by their allies to be not as important in international law, when compared to breaches committed by non-allies (see the elaboration of Ralph Wilde here). They react differently to each. Second, the apparently hypocritical use of universal international normative values seems to camouflage their self-serving political plans at the expense of other states. This technique reduces requested states’ bargaining power to seek favorable returns from its collaboration by imposing moral burdens on them. It also helps the requesting state to evade moral and legal responsibility for (attempted) coercion from other states, including responsibility owed to allies. An illuminating, but ironic example is that even EU entities are not exempt from secondary sanctions imposed by the US against Iran for an alleged violation of non-proliferation obligations and human rights obligations, despite the fact that the EU has also imposed sanctions against Iran for essentially the same reasons. To counter the negative effect of secondary sanctions, the EU has to adopt and modify the Blocking Statute: even allies may not be “paid back” or remedied by fellow collaborators.

Viewed against this backdrop, it is not surprising that states less interested in preserving geopolitical security and balance in Europe are unenthusiastic to answer the West’s call for joint action that will isolate Russia. As long as the West fails to provide plausible legal justification for not taking reactive measures to cease breaches committed by allies, or explain from an international law perspective why Russia’s breach should be treated differently (more specifically, why the Ukrainian situation deserves internationally coordinated reaction, while the others were only regional matters), the long-time omission towards breaches committed by allies remains the weak point of the West’s stance in relying on international law to ask for low-cost cooperation in isolating Russia.

Ready to Give More Material Offers?

Viewed against the difficulties in law and in practice to require other states to join in sanctions against Russia, it is imperative for both the sanction imposing states and the target states to seek extralegal strategies to convince other states joining to support their respective positions. As a matter of fact, many states are seeing the ongoing “sanction war” between the West and Russia as an opportunity to gain certain autonomy (for example, India, Tanzania, Algeria, the OPEC countries), indicating the necessity to add leverage to gain collaboration in a decentralized international society.

Recent negotiations between the West and some neutral states suggest that the West’s offers are not sufficient enough to persuade neutral states to change their behavior towards Russia. So far the main material leverage used by the West to persuade neutral states are warnings of reduced wheat imports from Ukraine (see here), continuance/expansion of aid programs, lifting existing sanctions, and possible geopolitical reconfiguration (see here). While these offers may be sufficient to attract alignment in other situations, at present they may not outweigh the states’ concern about Russia as a target. Russia’s position in the international political, military, and economy spheres is much too important for neutral states to risk by taking sanctions against them, and potentially deteriorating that relationship.

Many major regional powers – notably China, India and South Africa – have explicitly stated that they would not join the West to sanction Russia, thus making the West’s position less advantageous. Due to their geopolitical significance, such clear attitudes assure other neutral states that the West would not risk downgrading diplomatic or trade relations with neutral states for not joining in the sanctions. Such an unfriendly move by the West would push the affected states to the other side, notably the intensifying China-Russia partnership, and send negative messages to potential strategic partners, such as India. Last but not least, the sanctions imposed on Russia have not achieved their intended purpose: compelling Russia to cease armed conflict. Recent opposition within the West against the sanctions (as indicated by mass protests against gas and oil price increases in many EU states, the rising popularity of right-wing powers, for example in France, Serbia, and Hungary) further deters the neutral states from joining the collective sanctions, because the opposition reinforces the image that sanctions against Russia is likely to be in vain, and harms the sanctioning states’ own interests.

Or, Lower Gestures?

An alternative (or better) move for the West is to react to the accusation of a double-standard by reformulating the request to join in the sanctions, namely to discard the current “follow us for justice” reputation threats, and reformulate it into a pragmatic analysis of the current Russia-Ukraine situation, with more focus on the interests of states in joining the collective sanctions against Russia.

The first step is to admit that the West’s reaction to the current situation is not a purely altruistic defense of justice, but has pragmatic geopolitical interests concerning those involved. Readily admitting the self-interested portion of the call for collective sanctions can put each side – the requesting and the requested states – on equal footing, instead of in a seemingly Order-Obedience relationship. While reformulating the request may seem formalistic and weak in negotiations, it is of practical significance in at least the following aspects. First, identifying the assistance-seeking side ensures that the requesting side has bargaining power in deciding how the cooperation will operate, and how to position themselves to benefit from it. In return, balancing the bargaining power benefits both sides because it facilitates the establishment of a coordinated risk control mechanism. Second, acknowledging the pragmatic nature of the West’s reaction could mitigate accusations of hypocrisy, and gain more space for distinguishing or justifying the different reactions in prior situations: like you all, I am also doing this for my own interest. Would you like to see what you could get from helping me this time?

Author
Yueyao Zhang

Yueyao Zhang is a researcher at the Max Planck Institute for Comparative Public Law and International Law and a PhD candidate of Heidelberg University.

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1 Comment
  1. This is a very interesting and thorough contribution, which is of great value to the discourse around sanctions and countermeasures, and enhances our collective understanding of non-western approach to int’l. My only comment: the example given to support the claim that ‘… many international law scholars, call such criticism “whataboutism” that distracts attention from the ongoing armed conflict’ is in fact from a Eastern European scholar, as the author clearly explains in his article. That is not to say that there are no other western examples – but it’s important to acknowledge EE voices (and their rather distinct positionality than the west’s), especially with regards to this topic.

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