The Legality of Russia’s Indefinite Suspension of Nord Stream 1 Gas Pipeline Under International Law

[Hazar Kaan Özkonak is currently doing his PhD at Utrecht University (Utrecht, the Netherlands). His doctoral thesis focuses on the limits on the use of unilateral sanctions pursuant to the international rule of law principles.]

Introduction

On September 3, Gazprom, a state-owned and state-run energy company of the Russian Federation (Russia), completely and indefinitely suspended its Nord Stream 1 gas pipeline following a discovered oil leak in a turbine at its Portovaya compressor station. After this suspension, on September 26 and 27 there were unexplained leaks on both Nord Stream 1 and 2 pipelines which have been considered an act of sabotage. At the outset, it should be noted that this post will only discuss the suspension of Nord Stream 1 and not touch upon the alleged sabotage incidents.

The suspension decision was taken on the same day the G7 announced that they planned to ban “the provision of services which enable maritime transportation of Russian-origin crude oil and petroleum products globally above the price cap”. One day before the suspension, Dmitry Medvedev said that “Russia would turn off gas supply to Europe if Brussels pushes ahead with a price cap on Russian gas”. On September 7, Vladimir Putin stated that Russia would not fulfil its contractual obligations to supply gas to the European Union (EU) if it went ahead with the G7 plan. In addition to these statements about the G7 price cap plan, Dmitry Peskov spoke of Western sanctions and their negative impacts of impeding the maintenance and repair of the oil leak in question. 

These developments suggest that rather than being caused by issues related to the maintenance and repair of the oil leak in the pipeline, the suspension decision is very likely Russian retaliation against the G7 price cap plan and/or more broadly EU restrictive measures, i.e., EU unilateral sanctions, which have been imposed against Russia since February 2022. In other words, this suspension is in fact a new foreign policy tool of Russia by which it is seeking to pressure the EU and its member states into changing their policies against Russia. Hence, it should be considered an act of unilateral sanction, or more accurately a ‘tacit’ sanction because Russian authorities have not explicitly acknowledged it as a sanction.

With the advent of winter, Russia’s unilateral sanction may result in the high costs of heating, decline in production, power outages and rising inflation in the short term in EU member states. Moreover, these negative results may continue for some time as Gazprom has suspended the gas flow indefinitely, having not given a timeline for the pipe’s reopening. Due to the indefinite nature of the suspension, it is not clear when or under which conditions the suspension will end. It is thus important and necessary to evaluate the legality of the suspension of the Nord Stream 1 gas pipeline and its indefinite nature under international law.  

This post will first make general remarks on whether Russia’s suspension of Nord Stream 1 gas pipeline is a lawful unilateral sanction under international law by considering whether it constitutes an act of retorsion or countermeasure. Secondly, it will evaluate the legality of the indefinite nature of the suspension within the concepts of retorsions or countermeasures. It will not discuss Gazprom’s legal obligations towards its European partners which would be a question of private law.  

General Remarks on the Legality of the Suspension of the Nord Stream 1 Gas Pipeline

Unilateral sanctions, irrespective of whether they are tacit or explicit, are lawful under international law if they constitute acts of retorsion or countermeasures. Accordingly, to evaluate the legality of the suspension of the Nord Stream 1 gas pipeline, it is necessary to question whether Russia’s suspension constitutes an act of retorsion or countermeasure. 

Retorsions are ab initio lawful, albeit unfriendly, acts, such as lawful embargoes and the expulsion of diplomats, and they can be imposed to achieve both legal and political objectives of sanctions senders. Russia can impose retorsions against the G7 price cap plan and/or more broadly EU sanctions which have been imposed against Russia since February 2022. Russia’s suspension constitutes an act of retorsion if it complies with all rules, principles and standards of international law. In other words, it cannot violate any international obligation Russia owes to the EU. Since there is no specific multilateral regulation related to oil and gas trade in international (trade) law and Russia is not a State party of the Energy Charter Treaty which sets forth certain norms regarding energy trade and investment, it may prima facie seem that there is no clear obstacle in international law to the suspension of gas flow by Russia. However, Russia’s obligations towards the EU are not limited to norms regulating gas trade; they may also arise from conventional (multilateral or bilateral) and customary rules of international law and from general principles of (international) law such as World Trade Organization agreements, the principle of non-intervention and respecting fundamental human rights. They thus involve a wide spectrum of requirements, and detailed scrutiny is necessary to decide whether the suspension fully complies with international law and accordingly constitutes retorsions. Due to the limited space of this post, I will not further evaluate this wide spectrum.

Providing that the suspension of the Nord Stream 1 violates certain international obligations of Russia owed to the EU and goes beyond retorsions, it may be justified as a countermeasure. Through countermeasures which were regulated within the draft Articles on Responsibility of States (ARSIWA) and international organizations (DARIO) for Internationally Wrongful Acts, States and international organizations can adopt proportionate unlawful measures against other States and international organizations responsible for internationally wrongful acts in order to induce them to comply with their international obligations owed to the sanctions senders.

The concept of countermeasures requires certain requirements under both ARSIWA and DARIO. When countermeasures are taken against international organizations such as the EU (however, see here for the discussion about the legal personality of the EU), the requirements enumerated between Articles 51 – 57 DARIO must be fulfilled. An important requirement is that countermeasures can only be adopted by injured States or international organizations against ‘the wrongdoer’ international organization under Article 51.1 DARIO. This means that Russia’s suspension must have a legal objective and be a reaction against a breach committed by the EU. Thus, the adoption of suspension depends on the legality of EU sanctions in the first place, that is, the G7 price cap plan and more broadly EU sanctions which have been imposed against Russia since February 2022. If it is implemented, the G7 ban plan will not be effective until December 5; therefore, even if it may be a wrongful act of the EU, it does not give Russia the right to take countermeasures against the EU pre-emptively. Russia can thus only take countermeasures against the EU for its current sanctions if they are unlawful measures in the first place. Since the current EU sanctions against Russia are very broad, some of them may cause the EU to violate its obligations owed to Russia and be unlawful. It should be noted that security exceptions under Article XXI of General Agreement on Tariffs and Trade can allow the EU member states to impose such broad sanctions; however, I will not discuss them further here.

In case of violation, Russia would be able to take countermeasures against the wrongfulness of these EU sanctions. Nevertheless, their wrongfulness could be precluded by the concept of third-party countermeasures if Article 57 DARIO could be interpreted to cover the adoption of countermeasures by third parties. Article 57 allows non-injured States and international organizations to take “lawful measures” in response to breaches of obligations in the collective interests of the group or of international community as a whole. Despite certain opposing views, it is possible to argue that the time has come to accept the adoption of countermeasures as one form of these lawful measures (p. 25). Accordingly, since Russia’s full-scale invasion of Ukraine in 2022 very likely violates the prohibition of aggression, as overwhelmingly argued by the international community despite Russia’s defensive arguments, the EU can react to protect community norms as a third-party sanctions sender. Thus, even if EU sanctions are unlawful their wrongfulness could be precluded as third-party countermeasures, so long as they meet the conditions required by the concept of countermeasures, and there is no prior wrongful conduct of the EU in the first place. Consequently, Russian suspension does not constitute countermeasures as it very unlikely meets certain requirements of countermeasures by not being a reaction to a prior wrongful act of the EU.

The Indefinite Nature of the Suspension of the Nord Stream 1 Gas Pipeline

Since the construction of the first pipelines carrying Russian gas to Western Europe in the 1960s and 1980s, the export of energy has not been an issue between Europe and Russia. However, the latest military conflict between Ukraine and Russia has changed this relatively friendly energy trade, with the suspension of Nord Stream 1 pipeline just being one example of this deteriorating relationship.

Although Nord Stream 1 has also been closed in the past, this is the first time Gazprom has not given a timeline for the pipe’s reopening, at least not at the time of writing. This means that Russia’s suspension has been implemented indefinitely without clarifying when, how or under which conditions the suspension would end. Thus, I would like to evaluate the legality of the indefinite nature of Russia’s suspension under international law by considering how the termination process of unilateral sanctions is regulated within the concepts of retorsions or countermeasures. 

The concept of retorsions requires that sanctions senders must comply with their all international obligations owed to the targets while adopting sanctions. Then, if there is a rule on the termination date and conditions of sanctions under international law, Russia must abide by this rule to identify its act as a retorsion. However, there is no clear requirement concerning the termination process of unilateral sanctions under international law, that is, within the concept of retorsions. Therefore, if Russia’s suspension constitutes a retorsion, it may be implemented indefinitely in practice without any legal obstacle arising from international law.

This would not be the case for the concept of countermeasures which stipulates certain requirements for the termination of sanctions under ARSIWA and DARIO. As per these requirements, countermeasures need to be implemented ‘for the time being’ (see Article 49.2 ARSIWA and Article 51.2 DARIO) and terminated when the responsible state or international organization has complied with its obligations of cessation and reparation of its wrongfulness (see Article 53 ARSIWA and Article 56 DARIO) which is the objective of a countermeasure at the same time. Countermeasures are therefore ‘temporary’ measures which would be removed when the specific and clear objectives have been achieved. This also requires the design of countermeasures as ‘reviewable’ measures which would allow regularly inquiring whether the target has complied with these specific and clear objectives. Hence, unlike retorsions, if Russia aims to justify its suspension by the concept of countermeasures, it cannot take indefinite unilateral sanctions. It must fulfill those termination-related requirements above by having a specific and clear objective. However, the objective of Russia’s suspension is still not certain because this suspension may be adopted against all EU sanctions which have been imposed since 2022 or merely against certain measures, mentioned in Peskov’s statement, preventing the importation of goods that could be used in the maintenance and repairment of the oil leak in the pipeline. Also, this uncertainty impedes to regularly review the compatibility of the EU with the possible objective of the suspension. Consequently, it is very unlikely to argue that Russia fulfills neither temporary nor reviewable characters of the concept of countermeasures, and the suspension does not constitute an act of countermeasure in terms of the termination process requirements of the concept of countermeasures.

Conclusion

This post first showed that Russia’s suspension of Nord Stream 1 gas pipeline is in fact a unilateral sanction imposed by Russia against the EU in reaction to the G7 price cap plan and/or more broadly EU sanctions which have been imposed against Russia since February 2022. Secondly, it discussed whether this suspension could be considered retorsions or countermeasures under international law. Lastly, the indefinite nature of the suspension is revealed, and its legality was evaluated in terms of the termination process requirements within the concepts of retorsions and countermeasures.

Legal analysis showed that since there can be no pre-emptive countermeasure, rather than the G7 price cap plan, Russia can take countermeasures only against EU sanctions if they are unlawful measures in the first place. Though certain EU sanctions may violate international law, their wrongfulness could be justified with the concept of third-party countermeasure taken in response to Russia’s invasion of Ukraine. Also, Russia is not able to fulfil the termination process requirements within the concept of countermeasures. Thus, it is not possible to argue that the suspension constitutes a countermeasure. Then, if Russia violates its certain international obligations owed to the EU while suspending Nord Stream 1 gas pipeline, the concept of countermeasures will not be a circumstance precluding its wrongfulness. In that case, Russia would have an obligation to cease its suspension and make full reparation for the injury caused by its wrongful suspension under Part Two ARSIWA.   

However, since there is no binding multilateral rule regulating gas trade on Russia regarding the suspension of gas flow, Russia prima facie does not violate its international obligations owed to the EU by its suspension decision (it should be highlighted that other international obligations beyond gas trading were not discussed in this post). Hence, its act may constitute an act of retorsion. Unlike countermeasures, since retorsions do not involve requirements regarding the termination process of unilateral sanctions, Russia is free to indefinitely suspend Nord Stream 1 gas pipeline under current international law so long as the suspension continues to be an act of retorsion. Consequently, it is necessary to conduct further research and regular review concerning whether Russia’s suspension is consistent with the current and future international obligations of Russia towards the EU.