Unilateral and Extraterritorial Sanctions Symposium: A Rejoinder – Part I

[Charlotte Beaucillon is a professor of European and public international law at Université de Lille.]

From the ‘Comply’ Research Project to the Research Handbook: Triggering Dialogue

The Research Handbook on Unilateral and Extraterritorial Sanctions, published in late August 2021, is the result of the ‘COMPLY’ research project, a two-year endeavour involving 28 academics and practitioners from around the world – most of whom I was lucky enough to be able to bring together just before the outbreak of the COVID pandemic for a two-day conference in Paris in December 2019. The project was launched in 2018 to analyse the changes and implications of the contemporary practice of unilateral and extraterritorial sanctions, in a context where there was no general overview and analysis of this practice in international law. The Research Handbook on Unilateral and Extraterritorial Sanctions therefore aims not only to meet this need for a reference book in the field, but also to provide a basis on which to continue the academic debate about unilateral and extraterritorial sanctions, which is far from exhausted.

When the Research Handbook was published at the end of August 2021, I made a proposal to its contributors: let’s take the opportunity of the book’s publication to continue and add to the academic debate on such a rich subject!

This is what we did first with Ilze Znotina and Paulis Iljenkovs (Chapter 17), who offered a half-day discussion of the Handbook‘s results at the International Conference on Sanctions against Belarus that the Financial Intelligence Unit of Latvia held in November 2021, of which public summary is available here. I am delighted to continue this discussion process with Alexandra Hofer in the columns of Opinio Juris in February-March 2022. I would like to thank her for offering to lead this thrilling Symposium together, as well as the seven colleagues who accepted our invitation to participate in the exercise. As the Research Handbook is composed of four parts, we thought it would be interesting to invite colleagues to comment specifically on one of them. This rejoinder aims to bring out the links between the results of the Research Handbook and the rich contributions that make up the Symposium, and, I hope, to identify new avenues for collective and interdisciplinary research. The publication of this rejoinder comes at a critical moment in international relations, where unilateral and extraterritorial sanctions are one of the major instruments of reaction to Russia’s military agression against Ukraine, in the context of the blockage of the United Nations Security Council. May reading this Symposium and the Research Handbook on Unilateral and Extraterritorial Sanctions provide useful keys for analysis and food for thought in these troubled times.

Screening International Practice: Distinguishing Between Sanctions, Questioning Legitimacies

Part I of the Research Handbook on Unilateral and Extraterritorial Sanctions presents an overview of the contemporary practice in the field of unilateral and extraterritorial sanctions, based on six case studies – China (Chapter 5), the European Union (Chapter 7), India (Chapter 4), Russia (Chapter 6), South Africa (Chapter 3) and the United States (Chapter 8) –, as well as one cross-sectional study that also includes examples from Latin America and the Middle East (Chapter 2). This mixed methodology aimed at defining a single grid of analysis, which each author followed for their case-study while still offering a general overview of the global practice. Its results undoubtedly illustrate how strongly unilateral and extraterritorial sanctions are ‘here to stay’, how states that were previously opposed to this practice progressively come to accommodate it, and what different forms and focuses it may take depending on the various national or regional contexts from which they emerge.

This state of international practice is clearly reflected in recent days by the adoption of unilateral and extraterritorial sanctions, particularly by the European Union, the United Kingdom and the United States, in reaction to the Russian invasion of Ukraine. These very stringent unilateral sanctions are adopted here in combination with a series of various measures, including military ones, such as the closure of airspace to Russian overflights or support for Ukrainian weaponry.  Significantly, many other States have announced the adoption of similar unilateral sanctions, such as Switzerland, Canada, Japan or South Korea and Singapore (the list of sanctions senders changes daily and may differ slightly depending on the media source, see Al Jazeera and CNN). Interestingly, this list illustrates the state of international alliances that are at work in the evolution of the crisis with Russia. Some states refuse to qualify the Russian military presence in Ukraine as an invasion, and thus to note the violation of the territorial integrity of Ukraine as well as the violation of the peremptory norm of the prohibition of the use of force in international relations formulated in Article 2(4) of the United Nations Charter (see below on the consequences of this qualification). Other states like Venezuela – itself under American and EU unilateral sanctions – openly assure Russia of their strong support.

Stefano Palestini offers in his discussion a specific focus on Latin America, and provides an interesting perspective on the question of the perception, by targeted countries’ populations, of the legitimacy of the unilateral measures that are imposed upon their national state. Interestingly enough, he raises the question of the comparison between the unilateral measures adopted by the European Union against third Latin American states and the collective measures that are adopted by the regional organisation MERCOSUR against its own member States. Although the EU aims at “supporting and promoting its own interests on the international stage” (Article 3(5) of the TEU) through these instruments of external action – and more particularly here on the Latin American targeted states –, Stefano Palestini argues that these measures are perceived as more legitimate because of their adoption process and the availability to judicial review (on this specific issue, see also the developments on Part IV of the Handbook). This reading is paradoxical to the extent that, from a classical international law perspective focused on State sovereignty, the institutional sanctions adopted against the member State of one single international organisation are considered more legitimate than unilateral and extraterritorial measures imposed on a third country. This is based on the grounds that the state has agreed by treaty to the common principles conditioning membership in the organisation and to its – often symbolic – powers of institutional sanctions. It could seem all the more paradoxical to stigmatise what Stefano Palestini refers to as the political – and hence illegitimate? – nature of the MERCOSUR institutional sanctions against EU unilateral and extraterritorial sanctions practice, when the European Union is seeking to assert its own politically oriented external action on a third country, while at the same time it encounters difficulties at imposing the respect of its core democratic values on some of its own member states, such as Poland or Hungary. While this may be true in strict legal terms, the comparison of these instruments according to their perceived legitimacy undoubtedly points to the need, from a more global perspective, to ensure more transparent and rule-based international processes, at times where international instruments directly affect private persons and entire populations, whose capacity of (re)action/mobilisation has been both reinforced and reinvented at the age of new technologies. This also sheds light on the fact that, apart from the European Union which has a very specific function as a regional integration organisation, all unilateral and extraterritorial are adopted by states individually, whose domestic legal orders do not provide transparency in their decision process, and often impose very restrictive conditions to the review – if any – of their unilateral and extraterritorial sanctions.

These considerations lead us in turn to the discussion of Part I of the Research Handbook by Elin Hellquist, who points to the diversity of current practice in the field. Interestingly, by examining the different case studies proposed in the first part, she points to the total lack of harmonisation of the exposed unilateral practices. In this sense, the first part of the Research Handbook has played its role: to present in its simplest form and without comment the fragmentation of national (or similar) practices, the heterogeneity of their theoretical foundations, and to put them in parallel with the exponential use of these instruments in contemporary practice. While the analytical grid used has been the same, in broad terms, for each case, the chapters reveal the specificity of national approaches (e.g. US/China) and the perception by the senders that these instruments serve to project their power.

A third point emerges – rather surprisingly – from the comments on the first part of the Research Handbook, and questions the place in the debate opened by the book of sanctions adopted by regional organisations against their own members (Stefano Palestini, Ellin Hellquist, Larissa Van den Herik). The measures referred to by the commentators in their discussion are not multilateral in the sense of the definition used in the Introduction to the Research Handbook (p. 3), i.e. they do not derive from a decision of the UN Security Council on the basis of Chapter VII of the UN Charter (although one might add, for the sake of completeness, that UN member states may also choose to implement their Charter obligations through regional arrangements in which they participate; in which case the regional measures in question would in effect be acts of implementation of UN Security Council decisions). The regional measures surveyed also do not fall within the definition of unilateral measures, which are by definition aimed at a third party, including when imposed by an international organisation such as the European Union. They actually fall under a third legal category, that of so-called institutional sanctions, also defined in the Introduction of the Research Handbook where I assert that “what are nowadays called ‘unilateral sanctions’ do not, with perhaps a few exceptions, correspond to sanctions under international law stricto sensu” (p. 7). To take a concrete example, in the context of the invasion of Ukraine by Russia, such institutional sanctions have for instance been adopted by the Council of Europe. This calls for several comments. The different legal nature of institutional sanctions and unilateral and extraterritorial sanctions is sufficient to explain why the former are excluded from the scope of the Research Handbook, as is the exclusion of multilateral sanctions decided by the UN Security Council. Nevertheless, we have probably collectively put our finger on a new subject of collective study that is – for the time being – less addressed by doctrine.

Respect for International Law: The Need for a Stronger Stance on Unilateral and Extraterritorial Sanctions

The second part of the Research Handbook on Unilateral and Extraterritorial Sanctions is devoted to the analysis of unilateral and extraterritorial sanctions from the point of view of a series of rules and principles of public international law that are intended to govern them, and thus to frame and limit the proliferating practice discussed above. It is in this part of the Research Handbook,  and not in Part I, that one should look for the legal, rather than political or psychological, instruments that would enable analysts to put contemporary practice at an appropriate critical distance (re- Elin Hellquist). To this end, a first chapter is devoted to the articulation of unilateral measures with measures decided by the United Nations Security Council, insofar as many (controversial) attempts have been made in the past to extend the legitimacy of multilateral measures to unilateral measures presented as complementary or based on the same motives (I will not return to this theme, discussed above). The current situation regarding the Russian invasion of Ukraine is different, as the draft resolution of the UN Security Council could not be adopted due to the Russian veto. What remains is the qualification of the situation by the UN General Assembly, whose emergency meeting has been called by the Security Council in view of its blockage. From the perspective of the States adopting unilateral sanctions against Russia in reaction to the invasion of Ukraine, the situation is qualified as a violation of the territorial integrity of the state, an act of aggression and a violation of article 2(4) of the UN Charter, therefore corresponding to a violation of a peremptory norm of international law (see in above the links to the various country resources, and below the consequences in terms of international responsibility law). A second chapter analyses the contemporary practice of unilateral and extraterritorial sanctions from the point of view of the theory of jurisdiction, and highlights the evolution of national practices in this area, demonstrating in particular the erosion of diplomatic positions reacting to the extensive uses of extraterritoriality in unilateral sanctions, through a historical perspective. The third chapter questions the relevance of the rules of international state responsibility/international organisations as the sole framework for analyzing unilateral and extraterritorial sanctions; the majority of the latter do not fit into the category of countermeasures requirements. A similar observation can be made when reading the fourth and sixth chapters, which respectively question the role of the WTO and the OECD on the one hand, and of investment law on the other, in the framework of this practice. A fifth chapter adds to this overview of the various instruments available to regulate unilateral and extraterritorial sanctions, and offers a comparative analysis of the various blocking laws and regulations adopted for defense purposes.

Here again, the example of the sanctions adopted against Russia following the invasion of Ukraine is specific. It corresponds to the still debated case of third party countermeasures, which consist in the adoption by a non-injured State in the sense of the international law of responsibility, of “lawful” measures of reaction to the violation of obligations owed to the international community as a whole (Articles 54 and 48 of the International Law Commission on the international responsibility of the State), with, in the specific case of international organizations such as the European Union, an aim to safeguard the interest of the international community as a whole (Articles 49(3) and 57 of the International Law Commission on the responsibility of international organizations). On the other end of the spectrum, the Russian President has unsurprisingly alledged these unilateral reaction measures are illicit, while announcing further measures linked to nuclear deterrence. However political this rhetoric may be, the legal qualification of the underlying obligation to the violation of which the above-presented unilateral measures aim at reacting is unequivocal (see above).

Although the international law issues discussed in this part of the Research Handbook are of fundamental importance in framing contemporary practice on unilateral and extraterritorial sanctions, they have been the subject of scattered commentary in the context of this Symposium (which is also due to the fact that only one author participated in this specific discussion). It should be emphasized once again that the stakes are high, as the evolution of contemporary international law is at issue (see the Introduction to the Research Handbook, p. 11-12). This is indeed what Larissa Van den Herik‘s paper refers to in the title of her wide-ranging discussion “Unilateral sanctions and geoeconomics: what role for international law?” As she points out, this question, to which the second part of the Research Handbook sets out to find an answer, “is an Herculean task given the definitional challenge and the rise of informal sanctions”. We both agree on some of the conclusions to be drawn from this second part. First, there is no singleinternational law applicable to unilateral and extraterritorial sanctions, but rather a combination of several branches of international law is needed to govern them. This allows me to add that this implies that public practitioners, including in national administrations, must be willing or given the means to enter into highly technical considerations from a legal perspective in order not to analyse these issues from a sole political perspective. Secondly, the conclusions of the specialists who have been convened here go in an unfortunate direction: international lawyers are confronted with the limits of traditional legal categories – such as in the law of international responsibility – which are today ill suited to the very rapid and massive evolution of a practice that goes far beyond both the narrow delimitation of the notion of sanction stricto sensu (as touched upon above), and the frameworks laid down by international law for decentralized modes of enforcement, and in particular countermeasures. There is also a decline in the vigilance of states and their reactions to abusive and, arguably, illegal practices in international law, to the detriment of asserting the contours of their sovereignty, particularly in relation to the protection of their jurisdictional claims and the theory of jurisdiction. These considerations, relating to the external legal policy of states, are also verified in the developments devoted to international economic law, which now seems to serve more as a vector than a brake on these phenomena. The only remaining instruments are defensive ones – which are still highly perfectible – such as blocking laws and regulations, or the new initiatives taken within the framework of the European Union’s common commercial policy to react to economic constraints (reflections in which I had the pleasure of participating, as well as one of the contributors to the Research Handbook – see the report of the European Council on Foreign Relations’ Task Force for Strengthening Europe against Economic Coercion “Tough trade: The hidden costs of economic coercion”).

A final point, rightly brought up by Larissa Van den Herik in her discussion, concerns the protection of human rights as part of the composite international legal regime governing unilateral and extraterritorial sanctions. The issue is so broad – and so urgent, a point on which all colleagues participating in this Symposium agree, and to which I also unreservedly subscribe – that it has been dealt with in a separate Part of the Research Handbook. I will come back to it then.

Let me simply stress here that Parts III and IV of the Research Handbook are conceived in connection with its Parts I and II, which we have just discussed: in view of the exponential growth of practice (Part I) and the apparent difficulty of relying efficiently on all the relevant norms of international law (Part II), the objective of the book is to shift our focus to the impact of these unilateral and extraterritorial sanctions, in order to show the extent of the contemporary legal challenges related to their regulation. Their improved knowledge will hopefully lead to greater use of the various tools presented throughout the Research Handbook, or even to the emergence of new ones.