Over the last decade, Russia has aggressively and illegally attacked Ukraine in violation of international law. Its officials have removed thousands of Ukrainian children to Russia for re-education and adoption to turn them against Ukraine. And Russia has engaged in missile and drone attacks on civilian Ukrainian targets such as medical centers, stores, restaurants, and apartment buildings, resulting in more than 10,000 Ukrainian civilians killed, including more than 500 children.
Concerned about Russia’s ongoing violations of international law, the American Society of International Law (ASIL), in partnership with the Ukrainian Association of International Law, Ukrainian government officials and other leaders, organized the “Stand Tall for the Rule of Law” Summit in Lviv, Ukraine on December 8-10, 2023. This meeting of experts convened at the Ivan Franko National University in Lviv on the 75th anniversary of both the United Nations (UN) Convention on the Prevention and Punishment of Genocide and the UN Declaration of Human Rights. Seventy-five international delegates from fourteen countries and seventy-five Ukrainian leaders in law and government came together to discuss how to invigorate global calls for the protection of human rights, ensure accountability for war crimes in Ukraine, and overcome obstacles to rebuilding a just, peaceful, and prosperous post-war Ukraine. The participants sought to take symbolic and practical steps to aid Ukraine and to enhance the actual and perceived legitimacy of international law.
I was privileged to serve as a Discussant at the Summit with other experts in a Working Group tasked with addressing the question of “The Role of Sanctions in Moderating Russian Federation Behavior.” The Working Group was co-chaired by Colleen Graffy of Pepperdine Caruso School of Law and Oleksii Plotnikov, from the Association of Reintegration of Crimea. We were joined by Rapporteur Perry Bechky of Berliner Corcoran & Rowe, and several other distinguished participants. This article summarizes some of the Working Group’s discussions.
The charge given to the Working Group acknowledged that despite extensive and unprecedented sanctions imposed on Russia by the United States, the European Union, and their allies in response to its war of aggression against Ukraine, Russia has been able to undermine the effectiveness of those sanctions by exploiting the vulnerabilities of a deeply fragmented international order. Existing sanctions target specific exports from Russia such as oil and gas products, as well as fish, seafood, alcohol, diamonds, and luxury goods. The United States prohibits new investment in Russia by U.S. persons, as well as most services and financial transactions. Major Russian banks have been removed from the international financial messaging system Swift, delaying payments for Russian oil and gas. A newer innovation in the U.S. sanctions program is the targeting of industry sectors in the Russian economy such as architecture, engineering, construction, manufacturing, transportation, metals, and mining. U.S. exports to Russia of sensitive or dual-use technology, military goods, and similar items have been restricted at least since Russia’s invasion of Ukraine in 2014. In addition, U.S. and international sanctions also target individuals including Russian leaders, elites, and oligarchs, and those who finance and profit from the war in Ukraine. According to data collected by the European Council, the cost of these sanctions is having an impact, causing declines in Russia’s exports, revenues, and GDP.
The Working Group discussion began with a recognition of the multifaceted goals of the sanctions, including hobbling Russia’s war effort and bringing a halt to the fighting by denying Russia access to goods and technology that might give it an advantage on the battlefield. In addition, freezing Russian assets abroad not only reduces Russia’s access to revenues but may give Ukraine time to use other measures to obtain access to those assets to satisfy any judgments from international tribunals ordering Russia to pay reparations. Further, the sanctions are intended to communicate disapproval of Russia’s actions, avoid complicity in its international crimes, and demonstrate to Ukrainians that the international community stands with them.
The Working Group then addressed further steps that can be taken to strengthen the effect of the sanctions on Russia. The Working Group quickly identified that one major obstacle to the effectiveness of the sanctions on Russia is the lack of widespread international cooperation. While there is a coalition of approximately thirty countries that are imposing sanctions on Russia, many more are not. For example, Russia continues to export significant amounts of oil and gas to China and India. Russia is also circumventing the oil price cap imposed by the sanctions program by using a “shadow fleet” of vessels from countries that are not participating in the sanctions to transport Russian oil.
In light of Russia’s veto power, the UN Security Council has been stalemated. The Working Group briefly considered whether additional action in the UN General Assembly is a feasible and useful alternative to build international support, even if such resolutions would be non-binding. In March 2022, the UN General Assembly adopted a resolution demanding Russia immediately end the illegal use of force in Ukraine. Despite the fact that 141 Member States voted in favor of that resolution, several of them are still dealing with Russia. Many countries, especially in the Global South, see Western nations employing a double standard and are not interested in taking a position that might cost them. However, it was pointed out that even if Western countries have often put their own interests ahead of the international community in the past and have engaged in violations of international law, two wrongs do not make a right. Rather, more outreach to (and perhaps incentives for) Russia’s trading partners is needed to persuade them to participate in the sanctions against Russia. It was noted that although the European Union has historically been opposed to secondary sanctions, it is possible that position could be softened to allow sanctioning countries to also impose some form of secondary sanctions on third-party countries that help Russia circumvent sanctions.
It also was suggested that the international community develop a concept that requires participation in sanctions for third-party States where necessary to carry out international legal obligations, such as the erga omnes obligation to prevent and punish genocide. Such an obligation may be analogized to Principals 2 and 21 of the Rio and Stockholm Declarations in international environmental law where States are responsible for activities within the State’s jurisdiction and control that have effects outside the territory.
Another suggestion was to strengthen international trade treaties, such as the World Trade Organization agreements, to more expressly allow sanctions programs in response to violations of international law and to prevent Russia from using trade treaties to avoid sanctions. The idea of putting sanctions on a more solid footing in international law, perhaps through a new treaty regime, was raised on more than one occasion. Such a treaty could be used to strengthen cooperation, criminalize violations of the sanctions regime, and create a body to adjudicate claims.
With respect to sanctions on individuals, it was thought that imposing individual sanctions on owners of companies and their families such as the Russian oligarchs are very effective. Moreover, personal sanctions may also be less damaging to the sanctioning countries’ economies. However, some Russian oligarchs have been able to avoid sanctions by becoming EU citizens (using “Golden Passports”), so it is difficult to sanction them. More transparency in the ownership structures of companies is needed, (which would bring positive results beyond sanctions programs, e.g., with respect to terrorist financing, money laundering, tax evasion, etc.), and better record-keeping to keep track of downstream sales of goods. Similarly, better controls over financial institutions in the EU and elsewhere is needed.
Finally, it was noted that States imposing sanctions suffer financially and this may undermine democratic governments. The messaging needs to change. It should be emphasized that the purpose of sanctions is to punish Russia to stop present and future aggression, not just to help Ukraine.
