Is There a Legal Duty to Cooperate in Implementing Western Sanctions on Russia?

Following Russia’s invasion of Ukraine, the United States, Europe and other allies imposed sanctions on Russia for violating the prohibition against the use of force, a peremptory norm owed to the international community as a whole. While the ability of these sanctions per se to put a swift end to Russia’s invasion has been doubted (see here, here and here), recently, several states have arguably taken actions that undermine any impact the sanctions may have.

Saudi Arabia and the United Arab Emirates (UAE) have been in the forefront of the news for refusing President Biden’s plea to increase oil production after he announced a ban on imports of Russian oil. Additionally, the UAE has been receiving the yachts and jets of Russian businessmen on the US and European sanctions list. It has also been reported that Turkey is welcoming yachts of the sanctioned Russian rich. Turkey has also been reluctant to close its airspace to Russian planes in line with EU sanctions. India as well has been in the spotlight for buying discounted oil from Russia and planning to establish a rupee-ruble payment mechanism for trade with Russia, while Israel has refused to send weapons to Ukraine and has recently blocked it from buying Pegasus spyware.

These actions have been viewed as weakening Western efforts to isolate Russia and put an end to its invasion of Ukraine. Consequently, there have been growing calls to sanction/punish some of these states for their actions (see here, here and here). These calls raise the question of whether, under existing international law, states are legally obliged to cooperate with the United States and Europe in implementing the sanctions imposed on Russia or at least obliged to refrain from actions hindering the impact of these sanctions.

The purpose of this post is to examine this point under the obligations of third states arising in the case of a serious breach of a peremptory norm as enshrined in Article 41 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), namely the duty to cooperate to end serious breaches of peremptory norms and the duties of non-recognition and non-assistance. I should emphasize that the following is a legal analysis and does not entail a value judgement of the actions in question.

The Duty to Cooperate under Article 41 (1) of ARSIWA

According to Article 41 (1) of (ARSIWA)

[s]tates shall cooperate to bring to an end through lawful means any serious breach of (an obligation arising under a peremptory norm of general international law) within the meaning of Article 40.

Assuming that the Western sanctions on Russia are lawful, does this article entail a duty on other states to cooperate with the United States and Europe in implementing them or at least a duty to refrain from actions undermining their effect? Before addressing this question, the legal status of the obligation to cooperate under article 41(1) should be clarified.

Although in 2001 the International Law Commission (ILC) pointed out that Article 41 (1) ‘may reflect the progressive development of international law’ (A/CN.4/SER.A/2001/Add.1 (Part 2), p. 114, para. 3), it stated in the Draft Conclusions on Peremptory Norms of General International Law (adopted on first reading in 2019) that the obligation to cooperate to end serious breaches of peremptory norms has become part of existing international law (A/74/10, p. 194, para. 4) – a conclusion which I have elaborated on in a recent article. Nevertheless, the content of this legal duty is controversial.

Despite what the ILC stated in its commentary on Article 41 (1)( (p.114, para.2) (and in its commentaries on the topic of peremptory norms p. 195, para. 4) – that this article envisages the possibility of institutionalized and non-institutionalized cooperation– I argue that the duty to cooperate forms part of existing international law to the extent that cooperation takes place within the framework of the United Nations(UN), which is to say that states are obliged to ‘enter into coordinated action’ with other states with a view to ending breaches of peremptory norms only when that takes place through the UN. State practice is inconclusive regarding the existence of an obligation to cooperate with states that instigate measures unilaterally (either individually or collectively outside the framework of the UN) to end breaches of peremptory norms. Several states in the Sixth Committee have asserted that the duty to cooperate under Article 41 (1) shall not undermine the collective security system under the UN Charter, but that it should strengthen it and ‘prevent states from doing it alone’ (Netherlands, A/CN.4/515 and Add.1–3, p. 72. See also Mexico, A/C.6/56/SR.14, para. 12; France, A/C.6/55/SR.15, para. 9). Thus, if states are concerned that article 41 (1) may trigger unilateral measures, it is hard to argue that they accept a legal duty to cooperate in the adoption and implementation of those measures.

Considering the above, article 41(1) does not place states under an obligation to cooperate with the United States and Europe in enforcing their unilateral sanctions against Russia.

Duties of Non-recognition and Non-assistance under Article 41 (2) of ARSIWA

Article 41 (2) of ARSIWA obliges states not to recognize as lawful a situation created by a serious breach of a peremptory norm, nor render aid or assistance in maintaining that situation.

The duties of non-recognition and non-assistance are called ‘duties of isolation’ (Gattini: A Return Ticket to ‘Communitarisme’, p. 1188). Do they thus entail a general obligation for states not to interact with the state violating the peremptory norm or, at least, an obligation to refrain from actions that undermine the impact of measures adopted by other states to end the breach?

Starting with the duty of non-recognition, this obligation entails, as highlighted by the ILC in its commentary on article 41(2), a prohibition of formal recognition of situations created by the breach of a peremptory norm and also ‘acts which would imply such recognition’(p.114, para.5). This means that the obligation of non-recognition is not an all-encompassing prohibition of all forms of interaction with the violating state. Rather, it prohibits only acts whose “defining element is the requirement that the measures which are to be refrained from could ‘be said to imply recognition’” (Aust, Complicity and the Law of State Responsibility, p.334).

Consequently, given that states as Saudi Arabia and the UAE voted in favour of the General Assembly resolution condemning the Russian invasion of Ukraine, one cannot necessarily say that their actions regarding oil production and welcoming rich Russians imply a recognition that the Russian invasion was lawful. Thus, their compliance with the obligation of non-recognition is not in question.

Turning to the obligation of non-assistance, the ILC has stated that this obligation covers acts ‘which would not imply recognition of the situation’ created by a serious breach of the peremptory norm (p. 115, para. 12). Prima facie, one could suppose that this duty obliges states to refrain from any action that would, even indirectly, strengthen the position of the violating state and assist it in maintaining the unlawful situation.  

Nevertheless, the ILC has highlighted that the elements of aid and assistance noted in Article 41(2) are to be read in connection with Article 16 of ARSIWA, which deals with aid or assistance in the commission of an internationally wrongful act (p. 115, para. 11). Article 16 establishes the responsibility of a state which provides aid or assistance if a) there is a sufficient nexus between the aid rendered and the wrongful act, b) the state in question had knowledge of the circumstances of the wrongful act, and c) the state intended, by the aid or assistance given, to facilitate the commission of the wrongful act. It is generally recognised that a state is in breach of the obligation of non-assistance under Article 41(2) without having to show it had the requisite knowledge and intent because – as mentioned by the ILC – it is hardly conceivable that a state would not know about the commission of a serious breach of a peremptory norm (p. 115, para. 11). However, whether Article 41(2) prohibits all forms of assistance – or prohibits only those which contribute significantly to the maintenance of the breach of the peremptory norm – is questionable.

State practice is unclear and insufficient as to whether the nexus requirement is relaxed under Article 41(2).  Italy seems to have advocated a relaxed nexus when it argued before the ICJ in the Jurisdictional Immunities of the State case that had the Supreme Court of Italy upheld the immunity of Germany, it would then be considered to lend support to the maintenance of situations created by breaches of peremptory norms by Germany (Italy oral pleadings, p.56, para.16–17). In clarifying the procedural nature of the rules of state immunities, the Court seems to reject Italy’s contention regarding a relaxed nexus between the assistance in question and the maintenance of the unlawful situation. It stated laconically that

[r]ecognizing the immunity of a foreign state in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of jus cogens, or rendering aid and assistance in maintaining that situation, and so cannot contravene the principle in Article 41 of [ARSIWA] (p.140, para.93).

Therefore, it is safer to conclude that the relationship between the assistance provided and the maintenance of the situation created by the breach of a peremptory norm is not different from the way it is understood under Article 16 (Aust, Complicity and the Law of State Responsibility, pp. 340–341). Accordingly, the obligation of non-assistance under Article 41(2) does not cover forms of interaction with the violating state which may have dangerous side effects so long as they are not considered to significantly contribute to the maintenance of the situation created by the breach of a peremptory norm. In that context, it is important to mention that an assessment of the nexus requirement under Article 41(2) cannot be done in the abstract; rather, it is contextual and fact specific. One may mention here what the White House Press Secretary Jen Psaki said about India buying discounted oil from Russia. She warned that such a move would put the world’s largest democracy on the wrong side of history yet stated that India would not be violating US sanctions or anything along those lines by such purchase. She clarified that India only imports 1–2% of its oil from Russia while it imports 10% from the United States. It seems that the US believes that India is not having a significant impact on Russia’s ability to maintain the unlawful situation in Ukraine given its low import of oil from Russia in comparison to that from the US. In short, India is not considered to be significantly assisting Russia because it is empowering the US much more than it is empowering Russia.

In conclusion, there is no general obligation under existing international law to cooperate with other states imposing unilateral sanctions against a state breaching a peremptory norm nor an obligation to refrain from actions which reduce the impact of these sanctions. This is in contrast to the obligation to cooperate in the implementation of sanctions adopted by the UN, which finds its source in Article 2(5) of the UN Charter. This article, which states that “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action” provides for an obligation of loyal cooperation between the Organization and its members. While the first half of this article places UN members under a legal obligation to cooperate in implementing the binding measures adopted by the UN Security Council, the second half ‘has an accessory function, the primary aim being to prevent any hindrance to any action undertaken by the [UN]’(Gowlland-Debbas, Collective Responses to Illegal Acts in International law, p.380). This obligation of non-hindrance extends to measures recommended by the General Assembly as practice has shown that this organ has the power to recommend preventive and enforcement action (e.g. A/RES/1761(XVII) (1962); A/Res/ES-6/2 (1980)). Thus, even if states are not obliged to implement the measures implemented by the General Assembly, they are obliged to refrain from actions that contradict or undermine those measures.

Although the existence of this obligation does not seem to act as a compliance pull on states to implement UN-imposed sanctions, it can act as a legal justification for adopting countermeasures against states taking actions which hinder the effectiveness of those sanctions. But even here, caution against the risk of abuse remains necessary.