The War of 'Sanctions' and the Law of International Responsibility (Y.S. Kozheurov, журнал "Kutafin University Law Review", N 2 (Volume 2), October 2015)

The War of 'Sanctions' and the Law of International Responsibility*(1)

Y.S. Kozheurov (Russia),

PhD, Kutafin Moscow State Law University, 2001

Associate Professor, Department of International Law, Kutafin

Moscow State Law University

Журнал "Kutafin University Law Review", N 4, October-December 2015, р. 306-331.

The article examines the legal nature of the so-called Ukraine-related sanctions in terms of the law of international responsibility. The author concludes that the measures taken by a number of Western countries against Russia in connection with the events in Crimea and Eastern Ukraine, as well as the reaction of Russia to those measures, by their legal nature and content are not 'sanctions' in the understanding and in the context this term is mainly used in the modern law of international responsibility. The first part provides a brief description of the so-called Ukraine-related sanctions and the Russian response. The second part is devoted to the definition of the terms themselves. The author concludes that it is more preferable to use the term 'countermeasures' describing unilateral measures in the law of international responsibility. The third part examines the lawfulness of countermeasures taken by a State other than an injured State. The Conclusion contains an attempt to assess the legal nature of Ukraine-related sanctions on the basis of the study of international law and practice.

Table of contents

I. Introduction

II. 'Ukraine-related sanctions'

III. Sanctions or countermeasures?

IV. Is there a 'policeman' of the international community?

V. Conclusions

Bibliography

I. Introduction

The issue of the so-called unilateral sanctions was one of the leitmotifs of V St. Petersburg International Legal Forum 2015. The problem of sanctions imposed by a number of Western countries and the reaction of Russia on that was discussed in different contexts in almost all sessions of the Forum. For example, the impact of sanctions on the dialogue between Russia and the EU was debated within the session Problems of Harmonization of Energy Law in Russia, EU and Eurasian Economic Union.

The consequences of sanctions with respect to subjects of private law were analyzed during the discussion on Extraterritorial Effects of National Legislation - Transnational Corporations' Risks. But, of course, the most fruitful and comprehensive discussion took place within the framework of the special round table dedicated to the underlying theme of Unilateral Sanctions in a Multipolar World: Legal Challenges.

Within this session presided by Khristovor Ivanyan's (Managing Partner, Law Firm Ivanyan & Partners) and moderated by Joseph Brand (Partner, Squire Patton Boggs) there was made a comprehensive analysis of legislation in the United States in the field of sanctions. Regis Bismuth (Professor, University of Poitiers) expressed confidence in the prospects of a possible appeal against the sanctions under the WTO dispute settlement system. Richard Blakeley (Barrister, Brick Court Chambers) made an informative report on the practice opportunities and perspectives of appeals against unilateral EU sanctions before the Court of the EU. Jean-Marc Thouvenin (Director of the International Law Centre (CEDIN), Paris West University Nanterre La Defense, France) objected to the using individual sanctions against the members of Parliament imposed on the ground of their political activities. Naigen Zhang (Professor, Fudan University) is not agree, that unilateral sanctions do not have any legal basis under international law, under the UN Charter in particular. Kazem Gharib Abadi (Deputy Secretary-General, High Council for Human Rights of the Islamic Republic of Iran) criticized unilateral sanctions as they contradict, first of all, the obligations of States to respect and protect human rights around the world. Vladimir Chizhov (Permanent Representative of the Russian Federation to the European Union and European Atomic Agency) expressed doubts concerning the legal purity of third countries accession to the EU sanctions and noted with the regret that the EU sanctions being the exclusive interventions have become a routine policy tool. The political view was expressed in the speeches of Andrey Klishas (Chairman, Federation Council Committee of Constitutional Legislation and State-Building, Federal Assembly of the Russian Federation) and Konstantin Dolgov (Commissioner for Human Rights, Democracy and the Rule of Law, Ministry of Foreign Affairs of the Russian Federation). Mr Dolgov said that sanctions were the instrument of implementing geopolitical interests of the United States. Mr Klishas pointed to the practical impossibility of challenging the sanctions in the legal field, indicating that a rule-of-law State is not a State where rights are not violated, but a State where rights protection mechanisms are provided. Thus, he concluded that the reasoning behind sanctions is not legal, but purely political, and called the Western sanctions against Russia as aggression and encroachment on its sovereignty.

Heated Forum discussions encouraged the author to study the issue of unilateral sanctions from the perspective of modern law of international responsibility more thoroughly.

The word 'sanctions' in the title is enclosed in quotation marks on purpose. The main conclusion of the study is that the measures taken by a number of Western countries against Russia in connection with the events in Crimea and Eastern Ukraine, as well as the reaction of Russia, in its legal nature and content are not 'sanctions' in the sense and the context the term is mainly used in the modern law of international responsibility.

The first part of the study provides a brief description of the so-called Ukraine-related sanctions and Russian response to them. The second part is devoted to the definition of the terms. The author concludes that it is more preferable to use the word 'countermeasures' describing unilateral measures under the law of international responsibility. The third part examines the lawfulness of countermeasures taken by a State other than an injured State. The Conclusion contains an attempt to assess the legal nature of Ukraine-related sanctions on the basis of international law and practice analysis.

II. 'Ukraine-related sanctions'

To analyze the legal nature of the measures taken, it is necessary to describe them briefly. Measures taken by the United States (under US President executive orders NN 13660-13662 of 06, 17 and March 20, 2014, N 13685 of 19 December 2014), by the European Union (under the decisions and regulations of the Council of 17 March, June 23, July 31, September 8 and 18 December 2014), as well as by a number of their partners (Canada, Australia, Japan, Norway, Switzerland), for the purposes of the law of international responsibility should be classified into the following categories:

1) the individual measures taken against certain natural and legal persons (both Russian and Ukrainian) that are involved, according to the governments imposing 'sanctions', in the events in the Crimea and Eastern Ukraine, and expressed mainly in the prohibition on entry and freezing financial assets of individuals and organizations from the 'blacklists';

2) 'sectoral sanctions' taken against the financial, fuel and energy, and military-industrial sectors of the Russian economy; among these measures it is necessary to distinguish between individual 'sanctions' (the ban on the purchase of financial instruments for a number of Russian state-owned banks, non-admission to the investment market and the ban on the supply of dual-use goods for a number of Russian defense enterprises) and measures of impersonal nature aimed at preventing equipment supply, technology provision, software and services provision in the field of mineral resources exploration in the Arctic;

3) 'Crimea embargo' in the form of a ban on import of goods, technology or services from Crimea, as well as the prohibition for some US and European companies to supply any goods, technology or services to Crimea.

As a response the presidential decree of August 6, 2014 N 560 'On the application of certain special economic measures in order to ensure the security of the Russian Federation', imposed a ban on the import of commodities and products 'when the country of origin is a State that has taken the decision to impose economic sanctions against Russian legal entities and (or) individuals or joined such decision' according to the list approved by the Russian Government.

III. Sanctions or countermeasures?

From the perspective of the general law of international responsibility codified by UN International Law Commission (the ILC) in its Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA)*(2), the new responsibilities of the State-violator to discontinue the internationally wrongful act and make reparation in full in the form of restitution, compensation or satisfaction constitute the content of the international responsibility. The ILC refers the process of implementing those obligations to the implementation of international responsibility, where coercive measures aimed at inducing an offender to fulfill the above obligations take a central place. Depending on whether such measures are taken solely by the injured State unilaterally or collectively under the auspices of and in compliance with the decision of a competent international organization, coercive measures should be subdivided into countermeasures (unilateral measures) and sanctions (in compliance with the decision of an international organization).

Regarding the coercive measures aimed at ensuring the cessation of the internationally wrongful act and reparation, the ILC's Articles 2001 use the term 'countermeasures'. Counter measure is a temporary nonfulfillment of obligations by a State with respect to another State in order to induce it to cease its internationally wrongful act and make reparation. Countermeasures are acts that would be contrary to the obligations of the injured State against the responsible State unless they were performed in response to an offense and in order to achieve its cessation and reparation. To be lawful, countermeasures should be reciprocal, temporary, reversible and proportional to the violation*(3) and shall not affect the obligation to refrain from using force, obligations to protect fundamental human rights and other obligations having the status of jus cogens. In addition, the issue of countermeasures can be otherwise resolved (up to the prohibition) under so called self-contained regimes (WTO law, diplomatic law, human rights law and environmental law). The ILC left open the possibility of countermeasures that can be taken by a State other than an injured one (Art. 54 of the ARSIWA 2001).

The term 'countermeasure' is a relatively new one. It replaced the outdated term 'reprisal' and became widely used after the famous arbitration between the United States and France in the air services agreement case (1978). As a response to the refusal of France in violation of a bilateral agreement to take the planes of 'Pan Am' on their way from Los Angeles to Paris via London where navigation sensors (gauge) were to be changed, the United States suspended all flights of 'Air France' to Los Angeles. Despite the fact that the measure, although consistent with the nature of the obligation (air transport), was disproportionate in amount (losses suffered by 'Air France' were rated higher than the losses suffered by 'Pan Am'), it was deemed justified in terms of the concern about flight safety*(4).

It should be noted that the results of the ILC's work led to some harmonisation of terminology used to describe the consequences when States act in breach of their obligations that according to Ian Brownlie was in a 'state of chaos' reflecting the 'differences of opinion on the substance of the matter'*(5). The use of term 'sanctions' causes a lot of difficulties and controversies.

According to the most widespread approach based on a general theoretical doctrine of the logical structure of the legal norm (hypothesis - the disposition - sanction, 'if - then - otherwise') 'sanction' means any consequences of an internationally wrongful act. In this sense, 'sanctions' and responsibility, in fact, are equated. As Grigoriy Tunkin, the Soviet and Russian prominent international law scholar, wrote: 'Responsibility in international law (...) covers both the issue of sanctions, and the problem of their implementation. In other words, international responsibility is the legal consequence of violations of international law'*(6). According to Pranas Kuris 'responsibility is the implementation of sanctions; the result of action and application of sanctions'*(7). This understanding of the term 'sanction' by Soviet lawyers perfectly echoes the famous Ago's concept of 'secondary' rules of international law laid down in the basis of the ARSIWA. The authors of the Soviet Academic International Law Course expressly stated that 'in the science of international law consequences of an internationally wrongful act of a State imposed by such ["secondary"] rules, are defined as a sanction in international law, and international legal responsibility is defined as the application and implementation of international sanctions for the violation'*(8).

According to this approach the term 'sanction' connotes primarily with the notion of a norm of international law ('the sanction of international law') rather than with the possible coercive action taken by States or international organizations ('sanctions taken by States and international organizations'), or more precisely the term 'sanction' encompasses all the consequences of an internationally wrongful act, namely the duty to stop it, the obligation to compensate the damage in various forms and the ability to use coercive measures against the violator for the implementation of these obligations.

The second approach is based on the distinction between 'responsibility' and 'sanctions'. In the Soviet doctrine Vladimir Vasilenko developed this approach more comprehensively and consistently. Based on the results of the ILC's work that began to develop the concept of prospective Articles on the basis of the segregation of offender's secondary obligations (the content of international responsibility), and of rights of victims to implement these obligations (implementation of international responsibility) as early as in 1969, Vasilenko claimed that 'international sanctions as a measure of "pure" coercion should be neither confused nor equated with the responsibility or its forms'*(9). In the author's opinion, 'while the international legal responsibility of the wrongdoing State is its duty corresponding to the rights of victims in the framework of interstate regulatory and enforcement relations, international sanctions are the coercive measures, the procedural actions taken by injured States and (or) international organizations which are aimed at reaching an agreement on the scope and forms of responsibility between the injured State and the wrongdoing State, which opposes the voluntary fulfillment of their obligations arising under the international regulation and enforcement of legal relations'*(10). According to the author, the right to apply sanctions due to the failure of the offenders to perform their obligations caused by the offense is a 'secondary offense encroaching on the very principle of responsibility'*(11). It is interesting that the distinction of responsibility and sanctions resulted in the fact that Vasilenko devoted separate monographs to these 'institutions', namely 'State Responsibility for International Offences' (1976) and 'International Sanctions' (1982). In the second monograph, recognizing that 'coercion on the international scene if needed can be decentralized (taken by one or more States by way of self-help) and centralized (via the international institutional mechanism, i.e. with the help of international organizations)'*(12), the author also defined international sanctions as 'any lawful enforcement measures taken by States and international organizations in response to the international offense'*(13), referring retaliation, reprisal, non-recognition, the severance of diplomatic and consular relations, self-defense to the first type of 'sanctions' (decentralized), and suspension of rights and privileges of membership in international organizations, denial of membership, withdrawal of international communication and collective military action*(14) to the second type of sanctions (centralized).

Igor Lukashuk shared Vasilenko's approach to 'clearly separate responsibility and sanctions' and supported his view about the responsibility and 'sanctions', being interconnected, are different phenomena: "Sanctions" are means of implementation of responsibility'*(15).

The approach that allows not to mix the wrongdoing arising from the fact of committing an internationally wrongful act (the duty to cease the violation and to make reparation) which contradicts State obligations with means of both procedural (invocation) and coercive (countermeasures and sanctions) nature of implementation of these obligations should be defined precisely. However, both of these groups of effects have as their basis an internationally wrongful act, they are generated by it. In this context, it seems more accurate not to oppose the responsibility and the means of its implementation, but to distinguish within the responsibility between its content (duties of the offender) and the means of its implementation (invocation, countermeasures and sanctions).

Developing Vasilenko's concept in his monograph (2004) Lukashuk rather critically analyzed 'sanctions' taken by States unilaterally in a decentralized manner, citing numerous examples of abuses and violations under the guise of the term 'sanctions'. Indeed, much of what was called 'sanctions' actually represented (and still represents) means of realization of the national policy and national interests that are not always consistent with international law rather than reaction to a previous international wrongful act. In connection with these 'difficult issues' of applying 'sanctions', according to Lukashuk, 'in the interests of strengthening the international legal order and clarifying the rules governing the use of coercion, it is advisable to understand sanctions only as coercive measures used by international organizations' that are empowered by States, 'which gives them a fundamental difference from the individual actions of states*(16).

Accordingly, the unilateral actions of States should be called, in compliance with the ILC, 'countermeasures'. In any case, a generic term for sanctions and countermeasures is the term 'coercive measures', i.e. measures aimed at ensuring compliance with international obligations. It is the third approach to understanding the terms 'sanctions' and 'countermeasures' which is being acknowledged in the doctrine by more and more supporters*(17). The author of this work also shares this approach, especially because it is reflected in the materials of the ILC's work devoted to the topic of State responsibility.

ARSIWA in relation to an enforcement action uses the term 'countermeasure'. Even in 1979 in order to 'prevent any misunderstanding', the ILC demanded to distinguish between two situations: 1) when the 'act of a State' in question is a reactive measure applied directly and independently by the injured State against the State which has committed an internationally wrongful act against it, and 2) when the 'act of a State' is a reactive measure applied on the basis of a decision taken by a competent international organization, which has entrusted the application of that measure to the injured State itself, to another State, to a number of States or to all the Member States of the organization. The ILC thus allowed to reserve the term 'sanction' for reactive measures applied by virtue of a decision taken by an international organization following a breach of an international obligation which has serious consequences for the international community as a whole, and in particular for certain measures that the United Nations is empowered to adopt under the system established by the Charter 'with a view to the maintenance of international peace and security'*(18).

In its Commentary of 2001 the ILC defines a countermeasure as '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 that has been ruptured by the internationally wrongful act'*(19).

As for the other term that is wide-spread in the doctrine and practice, namely sanction, the ILC mentions it in the context of an action prescribed by an international organization, for example, in relation to the UN Security Council sanctions. With all the conventions of this field we can say that the modern connotation of the term 'sanction' is focused in the majority of cases on the identification of the measures taken under the 'organized community of nations'*(20). Countermeasures appear as a tool used by States unilaterally at their option (of course, within the limits permitted by international law) with the possible subsequent evaluation of their validity*(21). It is preferable to refer the term 'sanction' to measures taken multilaterally within the institutional framework.

Preference given to the use of the term 'countermeasure' in relation to the reciprocal unilateral measures is justified not only by the authority of the ILC, but also by the practice of international judicial institutions, in particular by the International Court of Justice that used the term in the Teheran Hostage Case*(22), in Nicaragua Military and Paramilitary Activities Case*(23), in Gabcikovo-Nagymaros Case*(24).

However, if we look at the State practice, professional literature, speeches of political leaders and media, we may have an impression that the term 'sanction' is much more commonly used. Indeed, if we refer to the legal impact of international relations getting worse in connection with the events in Ukraine in 2014, no statement is made without using 'sanctions' or 'countersanctions'. However, the interesting fact is that while all States decided to impose so-called 'sanctions' in relation to the events in Ukraine, only Australian legislation uses the term 'sanctions' as legitimate in the Decree on autonomous sanctions 2011*(25). Article 215 of the Treaty on the Functioning of the European Union that provides the legal basis for the introduction of measures in the area of EU foreign policy uses the term 'restrictive measures'. It was used in regulations and decisions of the EU that introduced 'sanctions' in relation to the events in Ukraine*(26). The term 'sanctions' is actually used in the resolutions of the European Parliament*(27), but these documents are purely political in nature.

It is known that the law of the United States is the most advanced in the sphere of unilateral 'sanctions', but US legislation is very inconsistent regarding the use of terms. On the one hand, the International Emergency Economic Powers Act*(28) and National Emergencies Act*(29) which stipulate the right of the President of the United States to determine the existence of an emergency in international relations and to introduce various limiting measures do not use the word 'sanctions'. Measures provided for in these laws are not in any way named, these laws just deal with the 'powers' of the US President. Executive decrees of the President of the USA that introduce specific measures do not use this word (sanctions) either. Yes, the website of the Office of Foreign Assets Control charged with monitoring the execution of these measures often uses the term 'sanctions'*(30), but it might be done for the reasons of convenience rather than in a strictly legal sense, as the regulations do not provide for it*(31).

On the other hand, United States passed special laws for certain countries or situations when the term 'sanctions' is used, namely the laws against Iran, Syria, Cuba, Burma (Burma Freedom and Democracy Act of 2003, PL 108-61 (50 USC § 1701), Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), PL 111-195 (22 USC 8501), Iran Sanctions Act of 1996, as Amended (50 USC § 1701), Iran Threat Reduction and Syria Human Rights Act of 2012, PL 112-158 (222 USC 8701), Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, PL 104-114 (22 USC §§ 6021-6091). The term 'sanctions' is mentioned in such laws regarding Ukraine as Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act*(32) and Ukraine Freedom Support Act*(33).

In Russia, according to Article 40 of the Federal Law 'On the principles of state regulation of foreign trade activity' N 164-FZ (December 8, 2003) the Government of the Russian Federation in compliance with universally recognized principles and norms of international law may introduce measures to restrict trade in goods and services (retaliate) if foreign State fails to fulfill obligations under international treaties in respect of the Russian Federation, or takes measures that violate the economic interests of Russia or Russian people or the political interests of the Russian Federation, including measures that unnecessarily prevent Russia from entering into the market of a foreign state or otherwise unreasonably discriminate against Russian nationals. On the basis of the Federal Law 'On special economic measures' N 281-FZ (December 30, 2006) in order to ensure the interests and security of the Russian Federation and (or) to remove or minimize the threat of violation of rights and freedoms of its citizens, the President of Russia is entitled to take in relation to both foreign States and its citizens various measures that include the ban on the performance of acts against a foreign state and (or) foreign organizations and citizens, and (or) an obligation to commit these acts and other restrictions (Art. 3). Thus, the Russian legislation does not provide for the term 'sanctions', and applies the terms 'response' and 'special economic measures'*(34).

Thus, the domestic laws of the countries actively using measures which are often referred to by the term as 'sanctions' in general do not give the reasons to apply this term to unilateral coercive measures. Nevertheless, in fact the term is widely used not only in political and diplomatic circles or documents, as well as in the media, but also, as we see, in States practice and in the scientific literature*(35). However, from a scientific point of view it is hardly correct to define phenomena different in nature, for example the unilateral measures and measures of 'organized community of nations', using only one term ('sanctions' or any other). 'The majority of authors today agree that it is both convenient and preferable not to use the same word to designate State measures and sanctions of international organizations'*(36). Ultimately, certain terms do not matter, the main thing is to see the difference between the mutual collective measures taken by the community of nations on the basis of the authorization by the competent international organization and unilateral measures of one State undertaken at its own risk and peril against another. In the first case the legitimacy of coercive measures both in terms of their grounds and in terms of their scope and the order of application is based on the legitimacy and authority of the competent international organization and its compliance with the procedures; in the second case the legitimacy of both introduction and implementation of unilateral measures is determined by a State itself, but a countermeasure is not a priori legitimate in this case. Thomas Frank pointed out that if the countermeasure is applied in response to the action that is not illegal, this countermeasure will ipso facto be disproportionate and illegal. However, 'even if the unlawfulness of the initial provocation can be demonstrated, that would not, by itself, establish the proportionality, and, thus, the legality of the response. Only if the provocation is unlawful and the countermeasure is proportionate its unlawfulness would be cured. If a response, even to an unlawful action, is disproportionate, it would be as unlawful (or even more unlawful) as the provocation itself'*(37).

We emphasize once again that, unlike the sanctions of international organizations that are based on the preceding comprehensive evaluation of the conduct of the addressee of measures as wrongful by a competent international organization reflecting the consensus of the Member States, a decision on the application of unilateral countermeasures is based on the subjective belief of the State taking countermeasures. There is no evidence that such evaluation will be in every case correct, other States have the right to disagree with such evaluation, but mainly and most likely, the State against which the countermeasure is introduced would disagree and consider, in its turn, such a countermeasure as a wrongful act giving rise to the application of its 'own' countermeasures. This potential 'war of countermeasures' can apparently be a very serious threat to the international rule of law rather than strengthen it.

In order to harmonize the terminology we now should focus on the term 'retorsion' that is defined in the doctrine as 'enforcement measures of one State against another, not going beyond international law, aiming at encouraging the latter to stop unfriendly, discriminatory but nevertheless lawful actions'*(38). However, retorsions can be applied in order to induce another State to cease its internationally wrongful act and make reparation, i.e. as the means of implementation of responsibility. The key difference between retorsions and countermeasures is that the measures taken as retorsions even potentially are not incompatible with the international obligations of the State applying them, which means that they would be legitimate, even if they are applied without any prior offense (imaginary or actual). For example, the recall of the ambassador, diplomats expulsion, refusal of entry, curtailment of the program of military-technical cooperation and other similar measures being definitely unfriendly (and this is their incentive effect) are, nevertheless, not a priori unlawful. This provides much wider field of application of retorsions not only in response to an internationally wrongful act, but it also allows to prevent possible violations. They can also be used in response to the act that does not constitute an offense, in various political, economic and other purposes in general. The question of whether the measures taken by the State as retorsions are consistent with its international obligations (whether the retorsion is in fact countermeasure, which in the absence of prior violations is illegal) is determined by the primary rules of international law. In this sense, as a mean of the implementation of responsibility (in certain cases) a retorsion goes beyond the scope of the law of international responsibility*(39), e.g. intensive diplomatic negotiations aimed at persuading the government to cease its internationally wrongful act and/or make reparation.

IV. Is there a 'policeman' of the international community?

There is even more complex and difficult problem regarding the so-called 'collective countermeasures', or, to be more precise, countermeasures 'in collective interests', or in accordance with a little bit ponderous ILC's terminology 'measures taken by States other than an injured State' (Articles 48, 54 of ARSIWA). This issue reflects the changes of international law in the twentieth century. Having overcome its solely bilateral nature the development of international law resulted in the emergence of the concept of peremptory norms of general international law (jus cogens) and the obligation erga omnes.

According to Art. 48 of ARSIWA a State other than an injured State (i.e. not directly affected by the breach of the obligation, but having, according to the findings of the International Court of Justice in the case of Barcelona Traction*(40), a legal interest in their protection) - if the violated obligation is established for the benefit of a group of States including that State (erga omnes partes) or in the interest of the international community as a whole (erga omnes) - is entitled to invoke responsibility and may demand from the responsible State cessation of the internationally wrongful act, assurances and guarantees of non-repetition of such an act and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries of the obligation breached (e.g., in the case of violation of human rights). Currently such a right of any State resulting from its membership in the international community is almost universally recognized and is enshrined in the Art. 48 of ARSIWA.

The situation is much more difficult concerning the possibility of taking countermeasures by a State other than an injured State. There were a lot of acute dissensions regarding this issue in the ILC and in the Sixth Committee of the General Assembly during the discussion of the text of future articles. For example Special Rapporteurs Roberto Ago and Willem Riphagen believe that a State has entrusted the decision concerning the definition of infringements and the reaction to them to the international institutions, and that a unilateral action taken by the States in the 'common interest' seriously invades, or even undermines the competence and authority of the UN Security Council. According to Riphagen, 'a single State cannot assume the role of "policeman" of the international community'*(41). However, the draft articles adopted at the first reading in 1996 contained the provision stipulating that in the case of 'international crimes'*(42) the notion of injured State extends to any State*(43). In the opinion of the Special Rapporteur Gaetano Arangio-Ruiz it meant the possibility of any State to take countermeasures against international crimes that however should be carried out in accordance with certain procedural framework that the Special Rapporteur offered (by the permission of the General Assembly, Security Council or the International Court of Justice)*(44).

Special Rapporteur James Crawford in his Third report made an assumption that from his point of view, a more balanced approach would be given if we separate the breach of obligations erga omnes, where a State injured directly can be identified, and such violations (primarily mass and gross violations of human rights by the State on its territory) where there are no injured States (in the strict sense of the word)*(45). In the first case a State obtains the right to take collective countermeasures only at the request of the injured State and within the limits defined by it (the analogy with collective self-defense); in the second case 'any State may take countermeasures that are subject to the provisions of this Chapter and in accordance with it in order to ensure cessation of the breach and reparation for victims'*(46).

However, these proposals have been criticized by many members of the Commission*(47) and States participating in the Sixth Committee of GA*(48). As a result, a compromise formula was entrenched in the final text of ARSIWA, according to which the chapter on countermeasures 'does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached'.

The Commission noted in its Commentary that the practice of collective countermeasures is 'limited and rather embryonic'*(49). In fact, the Commission managed to initiate six cases of such countermeasures until the year of 2000, all of them are listed in para. 3 of the Commentary to Article 54: 1) in 1978 the US imposed embargo against Uganda in response to 'genocide of Ugandan people'; 2) in 1981 the United States and several Western countries imposed the ban on the landing of civil aircraft of the USSR and Poland in response to the crackdown of demonstrations and the arrest of dissidents in Poland; 3) in 1982 at the request of the United Kingdom the European Community, Australia, New Zealand and Canada banned the import of Argentine goods in response to the invasion to the Falkland Islands; 4) in 1986 in response to the policy of apartheid and the introduction of a state of emergency in South Africa the United States and a number of other states introduced measures that went beyond measures authorized by the Security Council resolution 569 (1985) of 26 July 1985 - the ban on the landing of aircraft; 5) in 1990 before the adoption of relevant resolutions of the UN Security Council the European Community and the United States imposed a trade embargo against Iraq, and the Iraqi assets were frozen in connection with the occupation of Kuwait; 6) in 1998 in response to the Kosovo crisis the EU froze the assets of the Yugoslav and imposed a ban on the landing of aircraft in the country*(50). Commentators added to this list the measures taken by western countries against the Soviet Union in connection with the invasion to Afghanistan, against Iran in connection with the seizure of the US embassy in Tehran, and again against the USSR in connection with the downing of the Korean '747' on September 1, 1983*(51).

According to the Commission's conclusion 'the current state of international law in regard to countermeasures taken in the general or collective interest is uncertain. State practice is sparse and involves a limited number of States. At present, there appears to be no clearly recognized entitlement of States referred to in article 48 to take countermeasures in the collective interest. Consequently, it is not appropriate to include in the present articles a provision concerning the question whether other States as they are identified in article 48, are permitted to take countermeasures in order to induce a responsible State to comply with its obligations.

Instead, chapter II includes a saving clause which reserves the position and leaves the resolution of the matter to the further development of international law'*(52).

An analysis of the further development of international law since 2001 shows that the practice of applying countermeasures in the collective interest has not disappeared, but continues to be fragmental*(53). The situation is more ambiguous due to the fact that many of the measures taken even potentially are not incompatible with the international obligations (the ban on the entry of certain persons), i.e. they are not countermeasures but retorsions. In addition, it is an indisputable fact that a narrow range of States use the practice of application of the measures in the collective interests', and they are mainly the US and EU, and relevant examples from other States are quite rare, if any.

All of this leads to the conclusion that current International law contains no provisions that would authorize the use of countermeasures by a State other than an injured one (either in the collective interest or in the interest of the international community), so the above mentioned practice of unilateral collective countermeasures appears to be based on a shaky, if not dubious, international legal basis. It seems certain that the best mechanism to achieve these goals without causing any doubts in terms of legitimacy is the UN Security Council. But back to the formal legal point of view, the statement also exists that the current general international law does not contain provisions that would explicitly prohibit the use of countermeasures in the collective interest unilaterally. It should be noted that in 1986 the International Court of Justice, examining the allegations of Nicaragua in the cessation of economic aid from the United States and 90 percent reduction in the import quota for sugar, as well as the trade embargo imposed by the US government against Nicaragua in April and May 1981, came to the conclusion that there was a violation of general international law and recognized the impossibility of qualifying those economic measures, even if they did not conform to US obligations under the GATT (the issue was beyond the competence of the Court), as a violation of 'the customary law principle of non-interference'*(54). It, however, admitted that a complete trade embargo violates the prohibition to undermine the object and purpose of the Treaty of friendship, commerce and navigation between the United States and Nicaragua 1956, which is a special bilateral agreement*(55).

V. Conclusions

The desire of Western countries to call their measures 'sanctions' in order to hide unilateral nature of those measures by using this term is understandable. However, it is obvious that 'Ukraine-related sanctions' taken by Western countries can not be called 'sanctions', as they are not taken within the framework of any international organization. The fact that the 'Ukraine-related sanctions' are taken by several States on a mutually agreed basis, does not make them to be measures of collective nature, so they continue to be unilateral. Is it possible to call them countermeasures?

The answer to this question depends on a number of factors. Some of them incidentally go beyond the law of international responsibility, as they are related to the legal evaluation of the events that served as the formal reason to resort to the measures described above.

As it is pointed out by the ILC, countermeasures are acts that would be contrary to the obligations of the injured State against the responsible State if they were not taken in response to an offense and in order to achieve cessation of this offense and its reparation. Thus, it is likely that a number of the measures taken (such as the ban on entry or, possibly, the ban addressed to persons under the jurisdiction of the US and the EU) do not contradict international obligations, so they are not countermeasures but retorsions that the doctrine refers to as unfriendly measures that, however, do not go beyond the scope of international law and international obligations.

As for the other measures that are included into 'sectoral sanctions', both individual and impersonal (including the Russian response), their compliance with international obligations, in particular, with the WTO rules, could seriously be debated within the framework of special procedures*(56). If it is proved that, as it was claimed with regard to 'sectoral sanctions' by Western politicians and lawyers and in relation to the Russian ban on the import of agricultural products by Russian commentators, these measures will fall within the safeguard clause under Art. XXI of the GATT and Article XlV-bis of the GATS (exceptions for safety reasons) and, accordingly, are not contrary to WTO law, such measures should be classified as retorsions, too.

Unless stated otherwise, the question of the legitimacy and proper qualification of the measures will depend on how the events served as the formal reason for their introduction are qualified, because the wrongfulness of an act of a State that is not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three of the ARSIWA (art. 22 of the ARSIWA 2001), e.g. only if an act meets all features of legitimate countermeasure. However, such a qualification is referred to the area of the 'primary' rules of international law and as a result it goes beyond the scope of the law of international responsibility.

Thus, contradicting evaluations of the events in 2014 in Crimea and Eastern Ukraine lead to disputes concerning the legality of 'sanctions'. The Western governments are trying to convince the international community that the reunification of Crimea and Sevastopol with Russia is an 'annexation', and the events in Eastern Ukraine are attributable to Russia attempts to 'undermine or threaten the territorial integrity, sovereignty and independence of Ukraine'. Their actions ('sanctions'), according to this logic, are aimed at ending the alleged infringement, i.e. they are means of implementation of international responsibility, which in turn should determine illegitimacy of Russian response.

However, if we assume that these accusations against Russia are groundless and its actions do not violate international law, the so-called 'sanctions' become (in the part they are not in accordance with the international obligations of the States involved) illegitimate from international point and give grounds for Russia to use legitimate retaliatory countermeasures.

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*(1) The Author would like to thank Natalia Golovina (EL Teacher of English Language Department #1, Master's Degree Student of International Law Department of Kutafin Moscow State Law University) for language support and interest shown in the research undertaken by the Author.

*(2) The UN General Assembly took note of the articles on responsibility of States for internationally wrongful acts, presented by the International Law Commission, the text of which was annexed to its resolution A/RES/56/83 of 12 December 2001.

*(3) 'Considering the need to ensure that the adoption of countermeasures does not lead to inequitable results, proportionality must be assessed taking into account not only the purely 'quantitative' element of the injury suffered, but also 'qualitative' factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach' (ILC Commentary, Art. 51, para. 6. [2001,2007] Yearbook of the International Law Commission. 2001. [2007] Volume II. Part II. 135.

*(4) Case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France. Decision of [9 December 1978] / UN RIAA. Vol. XVIII (1978) 443-444, para 83.

*(5) Brounli JA. Mezhdunarodnoe pravo. V 2-h knigah. Kn. 2. Per. s angl. M.: Progress 1983. S. 114 (I Brownlie I, International Law, In 2 books. Bk. 2. Translated from English. (Progress 1983) 114). It is interesting, in the seventh edition of his fundamental work The Principles of Public International Law I. Brownlie has maintained its previous estimates (I Brownlie, Principles of Public International Law (7th edn., OUP 2008) 549).

*(6) Tunkin G.I. Teorija mezhdunarodnogo prava / Pod obshhej red. prof. L.N. Shestakova. M.: Zertsalo, 2009. S. 339 (GI Tunkin, The Theory of International Law (LN. Shestakov ed, Zertsalo 2009) 339).

*(7) Kuris P.M. Mezhdunarodnye pravonarushenija i otvetstvennost' gosudarstv. Vil'njus, 1973. S. 49-50 (PM Kuris International Offences and the Responsibility of States (Vilnius 1973) 49-50).

*(8) Kurs mezhdunarodnogo prava. Pod red. V.N. Kudrjavtseva. V 7-mi t. T. 3. M.: Nauka, 1989. S. 193 (The Course of International Law. In 7 vol. V. 3. (VN Kudrjavtsev ed, Science 1989) 193).

*(9) Vasilenko VA. Otvetstvennost' gosudarstva za mezhdunarodnye pravonarushenija. Kiev, 1976. S. 56 (V.A. Vasilenko, State Responsibility for International Offences (Kiev 1976) 56).

*(10) ibid (n 8) 57-58.

*(11) ibid (n 8) 55-56.

*(12) Vasilenko V.A. Mezhdunarodno-pravovye sankcii. Kiev, 1982. S. 10, 77-78 (VA Vasilenko, International Sanctions (Kiev 1982) 10, 77-78).

*(13) ibid (n 11) 29.

*(14) ibid (n 11) 79.

*(15) Lukashuk I.I. Pravo mezhdunarodnoj otvetstvennosti. M.: Wolters Kluwer, 2004. S. 308 (II Lukashuk, The Law of International Responsibility (Wolters Kluwer Russia 2004) 308).

*(16) ibid (n 14) 316-317.

*(17) Shumilov V.M. Mezhdunarodnoje pravo. M.: Mezhdunarodnije otnoshenija, 2012. S. 162 (VM Shumilov, International Law (International Relations 2012) 162); Vitzthum V.G. Mezhdunarodnoje pravo Trans. from German. M.: Infotropic Media, 2011. S. 750 (Vitzthum VG, International Law (Infotropic Media 2011) 750; Boklan D.S., Boklan O.S. Mezgdunarodno-pravovije osnovi primenenija gosudarstvami kontrmer // Mezhdunarodnoje economicheskoje pravo v epohu globalizatsiji Pod red. D.S. Boklan, I.M. Lifshitz. M.: VAVT, 2014. S. 88 (DS Boklan and OS Boklan, 'International Legal Basis for the Use of Countermeasures by States' in DS Boklan and IM Lifshitz (eds), International Economic Law in the Era of Globalization (VAVT 2014) 88); Kurdjukov G.I., Keshner M.V. Sootnoshenie otvetstvennosti i sankcij v mezhdunarodnom prave: doktrinal'nije podhody // Zhurnal rossijskogo prava, 2014, N 9. S.10 (GI Kurdyukov and MV Keshner 'The Ratio of Responsibility and Sanctions in International Law: The Doctrinal Approaches' [2014] 9 Journal of Russian Law 10).

*(18) Yearbook of the International Law Commission. 1979 [1980] Volume II. Part II. 121.

*(19) Yearbook of the International Law Commission. 2001. [2007] Volume II. Part II. 128.

*(20) Ferdross A. Mezhdunarodnoe pravo. Perevod s nem. M.: Inostrannaja literature, 1959. S. 499 (A Ferdross, International Law. Translation from German (Foreign Literature 1959) 499).

*(21) Th Franck, 'On Proportionality of Countermeasures in International Law' [2008] The American Journal of International Law 102 763.

*(22) United States Diplomatic and Consular Staff in Tehran (United States of America v. Islamic Republic of Iran), Judgment of 24 May 1980 [1980] ICJ Reports 3б, para 53.

*(23) The Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986 [1986] ICJ Reports 14, paras 201, 210, 248, 249, 252, 257.

*(24) The Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997 [1997] ICJ Reports 7, 105, paras 69-87.

*(25) Autonomous Sanctions Regulations [2011] SLI 247 <http://www.comlaw.gov.au/Series/F2011L02673> accessed 1 September 2015.

*(26) See, for example, Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine. OJ L 078, 17.3.2014 <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=u riserv:OJ.L_.2014.078.01.0006.01.ENG > accessed 1 September 2015.

*(27) Resolution on Russian pressure on Eastern Partnership countries and in particular destabilisation of Eastern Ukraine. N 2014/2699(RSP). 17.04.2014 <http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&refe rence=2014/2699> accessed 1 September 2015.

*(28) International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 <http://www.treasury.gov/resource-center/sanctions/Documents/ieepa> accessed 1 September 2015

*(29) National Emergencies Act (NEA), 50 U.S.C. §§ 1601-1651 <http://www.treasury. gov/resource-center/sanctions/Documents/nea> accessed 1 September 2015.

*(30) Office of Foreign Assets Control - Sanctions Programs and Information <http://www.treasury.gov/resource-center/sanctions/Pages/default> accessed 1 September 2015.

*(31) This refers to the two above-mentioned laws, which are the basis for action in the majority of cases, not only unilateral (in relation to the situation in the Balkans in 2001, in Yemen in 2012, Lebanon in 2007, Iraq 2003-2007, South Sudan 2014, on non-proliferation of nuclear weapons and nuclear materials (Russia, Syria, Iran) in 2012, in relation to Belarus in 2006, Zimbabwe 2003-2008), but also of multilateral nature pursuant to UN Security Council sanctions (CAR 2014, Cote d'Ivoire in 2006, the DRC in 2006, the regime Ch. Teylor in 2004, Libya in 2011, North Korea 2008-2011, Somalia 201-2012, the diamond trade in 2003).

*(32) Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2014, PL 113-95 (22 USC 8901) <http://www.gpo.gov/fdsys/ pkg/PLAW-113publ95/pdf/PLAW-113publ95 > accessed 1 September 2015.

*(33) Ukraine Freedom Support Act of 2014, PL 113-272 (22 USC 8921) <https://www.congress.gov/113/bills/hr5859/BILLS-113hr5859enr> accessed 1 September 2015.

*(34) In fairness it should be noted that the Decree of the President of the Russian Federation dated August 6, 2014 N 560 'On the application of certain special economic measures in order to ensure the security of the Russian Federation', held 'a ban or restrictions on the import of commodities and products which country of origin is a State decided to impose economic sanctions against Russian legal entities and (or) individuals or acceded to such a decision'.

*(35) Ispolinov A.S. Sankciiv VTO: specifika i praktika primenenija // Zakonodatel'stvo. 2014. N 10. S. 66-77 ( AS Ispolinov, 'The Sanctions in the WTO: the Specificity and Practice of Implementation' [2014] 10 The Legislation 66); Rachkov I.V. Jekonomicheskie sankcii s tochki zrenija prava GATT/VTO // Mezhdunarodnoe pravosudie. 2014. N 3 (11). S. 91-113 (IV Rachkov, 'Economic Sanctions from the Point of View of the Law of the GATT/WTO' [2014] 3 (11) International Justice 91); S Charnovitz, 'Rethinking WTO Trade Sanctions' (2011) 4 The American Journal of International Law 792.

*(36) 'The Law of International Responsibility' in J Crawford, A Pellet and S Olleson (eds), Oxford Commentaries on International Law (OUP 2010) 1134.

*(37) ibid (n 20) 763.

*(38) ibid (n 14) 310.

*(39) As noted in ILC's Commentary to the ARSIWA 'Countermeasures are to be contrasted with retorsion, i.e. "unfriendly" conduct which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations upon normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid programmes. Whatever their motivation, so long as such acts are not incompatible with the international obligations of the States taking them towards the target State, they do not involve countermeasures and they fall outside the scope of the present articles' [2007] YB of the International Law Commission 2001. Volume II. Part II. 128.

*(40) 'An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-а-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.' Barcelona Traction, Light and Power Company (Belgium v. Spain). Second Phase [1970] ICJ Reports 32.

*(41) YB of the International Law Commission. 1982. Vol II. Part I. [1984] 45, para 140.

*(42) The concept occupied a prominent place in the work of the Commission including under the influence of the Soviet representatives. However at the last stage ILC decided to abandon the term and not include it in the final text of the ARSIWA. However something similar can be found in the concept of 'serious breaches of obligations under peremptory norms of general international law' (Chapter III of Part II of ARSIWA).

*(43) Draft Articles 1996, Art. 40 para 3 Yearbook of the International Law Commission. 1996. Vol. II. Part II [1998] Report of the International Law Commission on Its Forty-Eight Session 63.

*(44) YB of the International Law Commission. 1995. Vol. II. Part I [2006] 11-12, para 35.

*(45) YB of the International Law Commission. 2000. Vol. II. Part I [2009] 105-106, paras 402-403.

*(46) ibid (n 44) 108-109, para 413.

*(47) YB of the International Law Commission. 2000. Vol. II. Part II. Report of the International Law Commission on Its Fifty-Second Session [2006] 30, paras 366-367.

*(48) Prepared by the Secretariat topical summary of the discussion held in the Sixth Committee of the General Assembly at its fifty-fifth session / UN Doc. A/ CN.4/513. 386, paras 175-176.

*(49) YB of the International Law Commission. 2001. Volume II. Part II [2007] 137.

*(50) ibid (n 48) 137-139.

*(51) 'The Law of International Responsibility' in J Crawford, A Pellet and S Olleson (eds), Oxford Commentaries on International Law (OUP 2010) 1146.

*(52) ibid (n 50) 139.

*(53) As an example, there are already mentioned measures taken by the United States in regard to the situation in the Balkans (2001), Yemen (2012), Lebanon (2007) and Iraq (2003-2007), South .Sudan (2014), on non-proliferation of nuclear weapons and nuclear materials (2012), in relation to Belarus (2006), Zimbabwe (2003-2008), as well as countermeasures in response to the crisis in Ukraine (2014). In the latter case, special measures were taken by EU, Norway, Switzerland, Japan, Australia and New Zealand. It should also be mentioned US laws against Iran, Syria, Cuba, Burma (Burma Freedom and Democracy Act of 2003, PL 108-61 (50 USC § 1701), Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), PL 111-195 (22 USC 8501), Iran Sanctions Act of 1996, as Amended (50 USC § 1701), Iran Threat Reduction and Syria Human Rights Act of 2012, PL 112-158 (222 USC 8701), Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, PL 104-114 (22 USC §§ 6021-6091).

*(54) The Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986 [1986] ICJ Reports 126, para. 245.

*(55) ibid (n 53) 138, para. 276.

*(56) According to the wide-spread point of view individual measures taken against specific individuals have nothing to do with international law, as directed not against the State but against individuals and entities. This conclusion is not entirely accurate. The extent to which the individual measures are not in conformity with international obligations (for example, in the field of investment protection or human rights, or WTO Law) they are directly related to the law of international responsibility. The procedure for implementation of international responsibility in such cases is called diplomatic protection which has an important pre-condition - the need to exhaust domestic remedies (if any) of the person whose rights are directly affected. With regard to the EU measures there are already several lawsuits filed by Russian individuals and organizations. To challenge US measures in the courts of the United States is almost impossible due to the doctrine of 'political question' and the precedent of Dames & Moor v Regan (453 U.S. 654 [1981].