Why Neutral Rights Mean that States Are Not Obliged to Join in Collective Sanctions

[Chin Leng Lim is Choh-Ming Li Professor of Law at the Chinese University of Hong Kong, an associé of the Institut de Droit International, Hon. Senior Fellow at BIICL, and Visiting Professor, Dickson Poon School of Law, King’s College London.

Ryan Martínez Mitchell is Associate Professor of Law at the Chinese University of Hong Kong and a Non-Resident Fellow at the Quincy Institute for Responsible Statecraft.]

The topic of collective countermeasures has rapidly gained importance in current debates within international law. It has especially come to the fore with regards to Western sanctioning efforts against Russia. Currently, attention is increasingly focused on whether Western states will make the all-important transition from “freezing” to “seizing” – i.e., will liquidate Moscow’s frozen central bank funds, and reallocate them to support Ukraine.

While the legality of such a move under collective countermeasures doctrine is contestable, the discussion also brings into the spotlight a related set of issues regarding the voluntary character of any such reprisals. Even after the West makes its decision, how should neutral states – or, indeed, any current sanctioners hesitant to make the leap to confiscation and reparations – understand their rights and obligations under the law of countermeasures?

Over the last two years, Biden administration officials at times stated a general duty for all states to cooperate with this initiative, with assertions such as the view that “you cannot be neutral on the UN Charter.” They have not gone so far as to make a clear expression of opinio juris that third states failing to sanction Russia commit a wrongful act warranting US countermeasures – however, the growing use of secondary sanctions, e.g., against foreign financial institutions, could be seen as implying such an interpretation. 

This is a notion that is sharply criticised by many in the developing world. One of the more strongly-worded objections was from Pakistan’s former Prime Minister Imran Khan, who asked the US rhetorically “are we your slaves?” But many others have also expressed similar views. Indeed, at present, a majority of states in the world have both condemned Russia’s military acts as illegal and declined to participate directly in Western sanctions. As the issue remains a focus of interstate tensions, it is important to determine the coherency of this stance, not least in terms of applicable norms of state responsibility. Do neutrals have a leg to stand on?

In a recent article in the International & Comparative Law Quarterly we argued that the phenomenon of non-participation in sanctions against Russia underscores important emerging dynamics with respect to the evolution of the law of state responsibility. On the one hand, it is important to address the potential legal validity of Western sanctions, based on emerging doctrines regarding collective countermeasures for erga omnes norm violations. The International Law Commission’s (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) remain the most important source of rules governing the legality of countermeasures, in general and on this particular question. Yet ARSIWA’s drafting history suggests only the lack of any clear rule prohibiting collective countermeasures. The efforts of some drafters to assert a stronger view – such as an obligation to participate in efforts to end violations of a jus cogens norm, e.g., the ban on aggression – were not endorsed by the Sixth (Legal) Committee of UN General Assembly. 

Thus, on the other hand, we should recognize that there is at present no obligation for states to participate in any sanctions regime not originating within the United Nations. Where advocates of a duty to participate in sanctions could still find some leverage, certainly, is in the retention in ARSIWA of language regarding the “duty to cooperate” via lawful means to bring to an end a breach of jus cogens norms, as embodied in Article 41(1). This was described at the time in the ILC’s commentary as a “progressive development of international law,” and has more recently (albeit somewhat more contentiously) been described as “now recognized under international law.” But even this “duty to cooperate”, alongside other provisions such as the negatively-worded “duty not to render aid or assistance in maintaining [an] unlawful situation” cannot plausibly be taken to mean an affirmative duty to join an ersatz multilateral (i.e., non-UN-based) sanctions scheme. 

One key reason that such a “neutral” stance is legally valid is, precisely, that states continue to enjoy a broad set of rights against coercion associated with traditional neutrality norms. 

Perhaps most importantly, it must be recognized that traditional neutral rights were not restricted to the context of military action, but also included “pacific blockade” and various other forms of hostile interstate conduct short of war. As stated by John Westlake in 1909: “to prevent the shipping of third states from leaving or entering the ports of your diplomatic enemy while no war exists between you and him–again, even if you only sequester them and do not condemn them as prizes–is a wrong to those states.” Almost three decades later, Philip Jessup argued along the same lines that, even under the League of Nations system ostensibly requiring states to sanction aggressors, “While each member [of the League] may decide for itself regarding the necessity for its own action [in a particular case], it cannot object to other members exercising a like freedom of judgment[.]” Nor did the UN Charter, which assigns sanctioning authority to the UN Security Council but does not ex ante specify actions to be taken by individual states vis-à-vis aggressors, adopt a stricter obligation.

To the extent that sanctions as an “economic weapon” and form of “economic warfare” may give rise to concerns over security, interference, and coercion like those of military conflicts, rights of neutrality remain highly relevant as to norms for interstate relations in this sphere. Moreover, even if neutrality rights were not, per se, applicable outside the context of uses of force (although, as we point out, they were indeed historically applied to pacific blockade, armed reprisals short of war, and other such pre-Charter aspects of the law of peacetime) they would still be a necessary element in determining the appropriateness of a collective countermeasures regime based on considerations of proportionality under ARSIWA. 

Any use of pressure to force third states to join a sanctions initiative would almost certainly be disproportionate in scope, unless the targeted state directly contributed military or other direct assistance to the original jus cogens breach. Punitive measures would, otherwise, constitute potentially unlawful interventions into the domain reservé of the targeted states, comprising coercion as to their economic policymaking or “formulation of foreign policy.” And, lastly, it is important to recall that neutrality and proportionality were themselves historically linked: the old dividing line between “peaceful” and “belligerent” blockade, for example, was often defined as turning on whether third state shipping was targeted.

The ongoing sanctioning efforts vis-à-vis Russia have been described as a “watershed” that has “seemingly … crystallized collective countermeasures doctrine.” Yet it is important to recognize areas in which they not only serve as a basis for innovation, but may restore to memory longstanding practices that help to mitigate and contain conflicts. The law of neutrality, as a body of norms reflecting the pluralism of the global community as well as possibilities for excess both in committing and in responding to a wrong, is one such resource. In an era of renewed great power conflict, its relevance may well be increasing. 

None of this is to say that it is not theoretically possible for norms of state responsibility to develop in the direction of obliging, rather than just permitting, states to join some non-Security Council enforcement actions against peers breaching jus cogens. In particular, a multilateral sanctions effort explicitly coordinated through and authorized by the UN General Assembly on the basis of the Uniting for Peace doctrine would at least address many of the concerns enumerated here, while also overcoming the Security Council’s dysfunction. Some states seemed to point in this direction, for example, when referring to sanctions against Israel as part of recent oral interventions in the International Court of Justice advisory opinion proceedings regarding policies in the Occupied Palestinian Territory.

Such a method would, however, require its initiators to do the hard diplomatic work of convincing states throughout the Global South to join in costly sanctions efforts. This would take persuasion and, perhaps, subsidies or supply chain guarantees to deal with the economic disruptions associated with cutting off commercial relations. There would be a world of difference between such an approach, respecting the rights of neutrals, and the mere imposition of a universal geoeconomic mandate as a fait accompli decided in Washington and Brussels.