What is the International Law on Unilateral Sanctions?:  Examining the Case of Unilateral Sanctions Imposed on Russia

What is the International Law on Unilateral Sanctions?:  Examining the Case of Unilateral Sanctions Imposed on Russia

Since the launch of the Russian invasion against Ukraine, a number of states have been acting in tandem to impose unilateral sanctions against Russia. The United States (US) is leading this initiative with the aim of dealing a blow to the core infrastructure of the Russian financial system.[1] The US Office of Foreign Assets Control (OFAC) in the Department of the Treasury imposed extensive economic measures against Russia’s most crucial financial institutions, critical private businesses and even some individuals believed to have a key role in funding the Russian state machinery conducting the ongoing invasion of Ukraine.

The European Union (EU) had already imposed different types of sanctions against Russia upon its annexation of Crimea in 2014. Therefore, while the current sactions far exceed those in scale, they are in one sense only an extension of the initial sanctions.[2] So far, the EU has sanctioned almost 700 people and more than 50 entities which are believed to be responsible for infringing Ukraine’s sovereignty and independence.

In addition to the US and the EU bloc, there are also other states that are joining the current wave of sanctions against Russia, such as Switzerland, South Korea and Japan.[3] In general, the economic sanctions in question include freezing the assets of and placing travel restrictions on some individuals, halting loans to Russia, restrictions on aviation, restrictions on money transactions to and from Russia as well as its removal from some intergovernmental organizations such as the Group of Eight (G8). 

Against this backdrop, it is worth reviewing the legal compatibility and legitimate limits of unilateral sanctions in international law norms and questioning if the above mentioned unilateral sanctions fall within these norms or not.

How Does International Law Recognize Unilateral Sanctions?

“Self-help” is a pivotal concept in the international legal system, as states- in the absence of full-fledged universal and standing legislative, executive and judicial bodies- might sometimes be compelled to sanction alleged wrongdoers on their own. Here “unilateral sanctions” come into play as the main self-help mechanism in international law. Unilateral sanctions are coercive measures or the threat of taking such measures in order to compel the sanctioned states or persons to change their behavior in a particular manner.

Interstate unilateral sanctions such as the recent wave of sanctions against Russia are quite popular in the contemporary global order.[4] The U.S. in particular is the top state which resorts to unilateral sanctions as a major tool of foreign policy. The history of unilateral sanctions by U.S. administrations dates back to the beginning of the 19th century.[5] Unilateral sanctions have gained importance particularly after modern international law developed in a manner that banned the use or threat of force between states.

This is in fact is the main tenet of the post-World War II international system that has the United Nations (UN) at its heart. Within the UN system, only the UN Security Council is entrusted with the legal use of force. Hence, given that the use of force against states that have allegedly commited wrongdoings is no longer an option for injured states, imposing unilateral sanctions has come to the forefront as the sole coercive option still available.

There is no specific rule in international law that prohibits states from resorting to unilateral sanctions against other states. To the contrary, some self-help concepts are recognized by international law under the name of “retorsions and countermeasures.”

In its Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which were published in 2001 and are acknowledged to reflect international customary law rules, the International Law Commission (ILC), working under the mandate of the UN General Assembly, preferred to define sanctions as “collective compelling measures of which implementation is decided by an international organization or a group of states.”

While the above definition does not cover unilateral sanctions by states vis-à-vis other states, ILC preferred using the terms of “retorsion” and “countermeasure” for those unilateral sanctions. Retorsions and countermeasures might be of economic, cultural, diplomatic and/or military nature as long as they do not involve any kind of threat or use of force.

Most of the recent sanctions against Russia are of an economic and diplomatic character. Retorsion, meanwhile, refers to “unfriendly conducts” by one state against another state that are not inconsistent with any international obligation of the state engaging in such conduct. Therefore, the legality of retorsions is not even a matter of discussion.

On the other hand, countermeasures are the kind of measures that “would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible state, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation” (Article 48 of the ARSIWA).

Furthermore, “Countermeasures are a feature of a decentralized system by which injured States may seek to vindicate their rights and to restore the legal relationship with the responsible State which has been ruptured by the internationally wrongful act” (from the Commentary of Article 48 of the ARSIWA). Most of the sanctions imposed against Russia fall under this category as the sanctioning states have suspended the fulfillment of their legal obligations towards the Russian state and persons in response to Russia’s preceding violation of international law by invading Ukraine.

It is for this reason that it can be claimed that the current sanctions should be considered as countermeasures and, therefore, as broadly in compliance with international law norms.

The discussion, nonetheless, does not end here. Even when unilateral sanctions are freed from their possible “illegality” as long as they fall under the category of countermeasures, their legality still hinges upon their implementation being within certain limits. According to the ILC, countermeasures cannot be intended to be merely a form of punishment for wrongful acts.

Instead, they ought to be instruments that compel the responsible state to comply with its international obligations (Article 49-51 of the ARSIWA). In summary, while unilateral sanctions are not illegal per se, they can only be implemented to achieve a legitimate aim and sactions exceeding this aim are stripped of legality.

Limits to Be Sought

To keep unilateral sanctions within legal boundaries, states must comply with the procedural and material standards stipulated in Articles 49-52 of the ARSIWA. The main procedural standard is that the responsible state must be warned and invited for negotiations over the dispute in hand by the injured state before a countermeasure is imposed.

Materially, the sanctioning state must take principles of necessity and proportionality as well as some basic human rights and humanitarian law norms into account.[6] As mentioned before, countermeasures cannot be intended solely as a form of punishment for wrongful acts. Therefore, they must be used to prevent a state from conducting or continuing its wrongful acts.

Thus,  sanctions must preferably be the sole and last option for the sanctioning state vis-à-vis the responsible state and the sanctioning state must strike a balance between the means to be used within the scope of the sanction and the intended aim. Some international lawyers emphasize that disproportionate economic sanctions can sometimes result in consequences for a state and its nation that are almost as devastating as the possible consequences of using military force.[7]

The UN Committee on Economic, Social and Cultural Rights states in its General Comment No. 8 on the Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights (1997) that “it is essential to distinguish between the basic objective of applying political and economic pressure upon the governing élite of the country to persuade them to conform to international law, and the collateral infliction of suffering upon the most vulnerable groups within the targeted country” (para. 4).

Even if this comment was made with regards to sanctions imposed by the UN Security Council, it can be taken as a suitable standard for countermeasures by states as well given that countermeasures are capable of seriously undermining basic human rights, such as the right to health, food and shelter. By taking this reality into consideration, the UN Security Council and General Assembly have emphasized in numerous resolutions that states must comply with human rights law and humanitarian law norms while implementing economic sanctions.[8]

The UN Human Rights Council has frequently expressed its concerns about the deteriorating impact of unilateral sanctions on human rights.[9] Some international private organizations which are in close collaboration with the UN Human Rights Council went even further by labeling economic sanctions as “collective punishment means” that are against the basic principles of human rights and international justice.[10]

The UN Human Rights Council, however, avoided such broad generalizations and was content to point out that the determining criteria for the legality of unilateral sanctions would be the measure’s legitimacy and conformity with procedural and material conditions that are supposed to be sought (A/71/287, para. 13-16).

Smart Sanctions

Even though the sanctions imposed against Iraq upon its invasion of Kuwait in 1990 were not unilateral sanctions, but rather imposed by the UN Security Council, the debates on their humanitarian consequences are still relevant for the context of  unilateral sanctions. The sanctions imposed against Iraq cut the country’s gross domestic production in half, but were not successful in compeling Iraqi forces to withdraw from Kuwait, which was only accomplished through the First Gulf War.

The sanctions against Iraq continued even after the war, resulting in staggering humanitarian costs. As such, public opinion came to believe that the tough economic sanctions actually harmed ordinary civilians more than the elites and policy-makers whose behavior they were intended to alter. Therefore, following this experience, the idea of “smarter sanctions” that directly target elites and policy-makers gained traction.

The invention and increasing use of “smart sanctions” is directly related to the international community’s intensifying efforts to ensure unilateral sanctions’s compliance with international human rights and humanitarian law norms. Smart sanctions refer to targeted sanctions that are only directed towards specific persons or institutions. As such, smart sanctions remarkably increase the likelihood that unilateral sanctions remain within legal boundaries.

The sanctions imposed against Russia so far have been carefully selected by the sanctioning states and seem to be targeting the highly relevant entities and individuals. Thus, it is possible to argue that these sanctions are “as smart as possible” and definitely legal. Nonetheless, the impact of these sanctions will inevitably have a significant humanitarian cost by imposing great hardships on the daily lives of millions of ordinary Russians.

However, considering the magnitude of Russia’s violation of international law, the countermeasures must inevitably be of a similar scale. Otherwise, the only option remaining would be a large-scale war with even greater consequences for all the parties to the conflict. Therefore, the current unilateral sanctions should indeed be deemed proportionate, necessary and sufficiently smart.

Yet, decision-makers must of course always bear in mind that unilateral sanctions are “a specialized instrument best deployed in controlled circumstances, not an all-purpose tool for everyday use. Policymakers should treat them like a scalpel, not a Swiss Army knife.”[11] 

Though the scope of the sanctions imposed against Russia by no means exceed the magnitude of Russia’s violation of international law through its invasion of a sovereign state, and therefore should be considered as broadly within international law norms, it remains yet to be seen if they will ultimately be effective in compelling Russia to change its behavior and preventing other states from committing similar violations in the future.

[1] https://home.treasury.gov/news/press-releases/jy0608

[2] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2022:057:TOC

[3] For the example of Switzerland, see: https://www.reuters.com/world/europe/switzerland-adopts-new-eu-sanctions-russia-2022-03-04/

[4] For some distinguished academic works on this topc, see: Kern Alexander, Economic Sanctions- Law and Public Policy, New York : Palgrave Macmillan, 2009; Rahmat Mohamad, “Unilateral Sanctions in International Law: A Quest for Legality” in Economic Sanctions under International Law, ed. Ali Z. Marossi Marisa R. Bassett (Hague: T.M.C. Asser Press, 2015); Galip Engin Şimşek, “Uluslararası Hukuk Açısından Ekonomik Yaptırımlar ve ABD’nin Tek Taraflı Yaptırımlarının Kısa Bir Değerlendirilmesi”, İstanbul Hukuk Mecmuası, 78/4 (2021).

[5] Robert McNamara, “The Full Story of Thomas Jefferson’s Embargo Act of 1807”, ThoughtCo., https://www.thoughtco.com/embargo-act-of-1807-1773316, (accessed 6 July 2020).

[6] Alexander Orakhelashvili, “The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Cases of Iran and Syria”, in Economic Sanctions under International Law, ed. Ali Z. Marossi Marisa R. Bassett (Hague: T.M.C. Asser Press, 2015), 17-18.

[7] Vaughan Lowe, Antonios Tzanakopoulos, “Economic Warfare”, Max Planck Encyclopedia of Public International Law, (2012) : 8-13.

[8] UNSC, “Combating Terrorism”, S/RES/1456, 2003; UNSC, “Continuation of Measures Imposed Against the Taliban and Al-Qaida”, S/RES/1822, 2008; UNGA, “Supplement to an Agenda for Peace”, A/RES/51/242, 1997.

[9] Human Rights Council, “Human Rights and Unilateral Coercive Measures”, 4/103, 2007; HRC, “Human Rights and Unilateral Coercive Measures”, 18/120, 2011; HRC Resolutions 6/7, 9/4, 12/22, 15/24, 19/32, 24/14 and 27/21; the Report of the Special Rapporteur, who was appointed by the UN Human Rights Council, on the negative impact of unilateral coercive measures on the enjoyment of human rights, which was published in 2015, see: https://www.google.com/search?client=safari&rls=en&q=UN+Human+Rights+Council,+on+the+negative+impact+of+unilateral+coercive+measures+on+the+enjoyment+of+human+rights,+which+was+published+in+2015&ie=UTF-8&oe=UTF-8.

[10] OHCHR, “International Progress Organization, Appeal against Sanctions, Submission to the Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights”, 1996.

[11] Daniel W. Drezner, “The Use and Abuse of Economic Coercion”, Foreign Affairs, 2021, https://www.foreignaffairs.com/articles/united-states/2021-08-24/united-states-sanctions (accessed 29 December 2021).