EU Anti-Russian Sanctions (Restrictive Measures): Compliance with International Law

ISSN 1019-3316, Herald of the Russian Academy of Sciences, 2022, Vol. 92, Suppl. 7, pp. S636–S642. © The Author(s), 2022. This article is an open access publication. Russian Text © The Author(s), 2022, published in Sovremennaya Evropa, 2022, No. 6. European Studies EU Anti-Russian Sanctions (Restrictive Measures): Compliance with International Law V. V. Voynikova,b,# aMoscow State Institute of International Relations (MGIMO University), Ministry of Foreign Affairs of Russia, Moscow, Russia bImmanuel Kant Baltic Federal University, Kaliningrad, Russia e-mail: Received June 12, 2022; revised August 14, 2022; accepted September 9, 2022 Abstract—The EU sanctions policy against Russia began back in 2014 as a response to the aggravation of the crisis in Ukraine. In 2022, sanctions (restrictive measures) against Russia were significantly strengthened and acquired a large-scale and unpredictable character. The purpose of this article is to identify the essential characteristics of the EU anti-Russian sanctions and to determine the legal nature of the sanctions, as well as their compliance with international law. It is concluded that the unilateral EU sanctions, contrary to their purpose, are intended to punish Russia by causing maximum damage. International law does not forbid states and their associations to impose unilateral restrictive measures in the economic sphere if they are justified by security considerations. In this context, the verification of the validity of the EU sanctions should be assessed individually for each measure. The author believes that a number of EU restrictive measures taken against the Russian Federation go beyond the scope of the permissions established by international law. This is especially true regarding measures taken in 2022. Moreover, the practice of implementing the adopted restrictive measures is becoming increasingly sophisticated, indicating that the European Union and its individual members are abusing their position. Keywords: restrictive measures, sanctions, Russia, European Union, international law, common foreign and security policy DOI: 10.1134/S1019331622130111 INTRODUCTION International law understands sanctions as coercive measures applied in case of refusal of a subject of international law to fulfill its international legal obligations [Meshcheryakova, 2017, p. 32]. The adoption of international sanctions is provided, in particular, by Article 41 of the UN Charter.1 Thus, initially sanctions were considered as a measure of coercion on the part of bodies authorized by the international community toward certain states that violate the norms of international law. In other words, in this case international sanctions were meant. However, subsequently the practice of applying sanctions was expanded significantly, and this instrument was adopted by other, unauthorized, entities. Therefore, along with international sanctions, unilateral coercive measures began to appear. Consequently, in modern international relations, two groups of coercive measures can be found, depending on the subject of application, which Yu.N. Zhdanov qualifies as counter# Vadim Valentinovich Voynikov, Dr. Sci. (Law) is a Professor in the Department of European Law at MGIMO University. 1 UN Charter. https://www.un.org/ru/about-us/un-charter/full- text. Cited June 28, 2022. measures (horizontal measures), applied by states, and sanctions (vertical measures), established by international organizations [Zhdanov, 1999, p. 10]. LEGAL BASIS FOR THE EU SANCTIONS POLICY The European Union has the competence to implement its own sanctions policy. For the first time, the European Union applied sanctions in the spring of 1994 after the Maastricht Treaty had entered into force [Giumelli et al., 2022]. The legal lexicon of the European Union does not contain the concept of a sanction, primary and secondary EU law using the concept of restrictive measures; however, in both ordinary and scientific language [Timofeev, 2021; Zelyova, 2021], as well as in the political lexicon and even in soft law acts, the concept of sanctions is used quite widely as a synonym for restrictive measures. As part of the EU sanctions policy, it is necessary to single out international sanctions (restrictive measures), taken in pursuance of UN Security Council resolutions, as well as unilateral sanctions, adopted by the European Union independently, in the absence of S636 EU ANTI-RUSSIAN SANCTIONS (RESTRICTIVE MEASURES) an appropriate international legal basis, i.e., acting as unilateral or autonomous sanctions [Borlini and Silingardi, 2018]. The adoption of unilateral sanctions indicates an increase in the autonomization of the policy of applying restrictive measures [Abdullin and Keshner, 2021, p. 73]. In general terms, unilateral sanctions are measures taken by states, groups of states, or regional organizations without the consent of or bypassing the UN Security Council, not in accordance with the international obligations of the sanctioning entity, in order to change the policy or behavior of another state; to achieve its subordination in the implementation of its sovereign rights; to secure advantages of any kind; or to warn, coerce, or punish a state on which the sanctions have been imposed.2 The main difference between international and unilateral sanctions is that a state, joining the UN Charter, recognizes the authority of the UN Security Council to take sanctions measures, i.e., agrees that sanctions could theoretically be imposed on this state itself. With regard to unilateral sanctions of the European Union and other subjects of international law, the object of the sanctions policy does not recognize the authority of the relevant subject to apply certain restrictive measures against this state or its individuals or legal entities. Within the framework of the EU sanctions policy, a number of distinctive features can be identified. First, sanctions (restrictive measures) are always collective in nature; i.e., they are adopted not at the level of specific states but at the level of the entire Union and are subject to application by all EU countries. Moreover, a feature of the EU sanctions policy is the involvement in this policy of third states that are not members of the European Union but are invited to join the adopted restrictive measures by adopting restrictions similar in content [Hellquist, 2016]. This applies in particular to EU candidate countries, which are encouraged to regularly join the measures taken at the EU level [Szép and Van Elsuwege, 2020, p. 7]. Second, EU restrictive measures are limited in terms of time; they are taken, as a rule, for a period of six months and are subject to regular review to assess their effectiveness. Third, at the moment, the restrictive measures of the European Union do not have the extraterritorial effect, which, in particular, is typical of the US sanctions policy. This means that restrictive EU measures are mandatory for all enti (...truncated)