Amidst the breaking-down of cooperation between the USA and Russia in addressing the war in Syria, the continuation of the Ukrainian crisis and the US charges against Russia for its alleged interference in the American Presidential elections, the sanction tit-for-tat between the two Powers continues. The most recent episode occurred during the first week of October, when the Russian Federation decided to suspend – and in one case terminate – various nuclear-related agreements between itself and the United States of America. Russia’s unilateral decisions raise several questions, notably with regard to the law of treaties; however it is Russia’s justification for suspending the 2013 Agreement on Cooperation in Nuclear and Energy Related Scientific Research and Development (hereafter the ‘2013 Agreement’) that caught my attention and on which I wish to comment. It so happens that the Kremlin justified the suspension as a countermeasure in response to the American sanctions against it.
The 2013 Agreement‘s aim is to provide a stable and reliable framework within which the USA and Russia can cooperate in fields of research and development regarding the peaceful use of nuclear energy. Because of the vague wording of the 2013 Agreement, it is difficult to determine what the exact obligations of the parties are and whether their fulfilment allows more leeway. Under these circumstances, one could consider Russia’s suspension as simply symbolic and another indication of the cooling of relations with the USA. Nevertheless, in a document published by the Russian State, the suspension is claimed to be a countermeasure against the sanctions adopted by the US, implying that Russia views its own action as wrongful. By invoking the magic word ‘countermeasures’, the Russian government is summoning a circumstance precluding wrongfulness. As is well known, in order for Russia to justifiably adopt such measures, the (main) condition that needs to be respected is the commission of a wrongful act by the United States against the Russia Federation. It follows that the legality of Russia’s suspension (or the preclusion of the wrongfulness of that act) would depend – in part – on the legality of the American sanctions that Russia is objecting to.
Russia claims that, as a result of the sanctions against it, the US is responsible for a ‘substantial violation of the terms of the  Agreement’ and specifically Articles IV(3) and X(1). This breach would result from a letter sent in April 2014 by:
‘the US Department of Energy Bureau at the US Embassy in Moscow (…) announcing the suspension of nuclear energy cooperation in connection with the events in Ukraine’ and the subsequent cancellation of ‘bilateral meetings and events related to nuclear energy’.
Hence, the sanctions would have directly ‘affected the areas of cooperation under the Agreement’. In Russia’s view, the continuation of the US sanctions – which includes the violation of the Agreement – ‘requires the adoption of countermeasures in relation to the US’ (all the above quotes are taken from the Russian government decision). In another comment, the Russian Ministry of Foreign Affairs indicated that ‘Russia will consider the possibility of reversing its decision to suspend the Agreement when the United States reaffirms its willingness to fully restore compliance with the Agreement’.
The American government adopted sanctions against Russia in 2012 in response to ‘gross human rights violations’, the Magnitsky Act, and in 2014 in reaction to the Ukrainian crisis. Though the Kremlin has also objected to the former sanctions, including with regard to the suspension of other nuclear-related agreements (see here), this commentary will be limited to the latter measures. Russia appears to link the alleged breach of the 2013 Agreement to the USA’s decision to adopt sanctions in spring 2014 and their systematic renewal. It is worth quoting the government decision again:
‘the regular extension of US sanctions against Russia, including the suspension of Russian-US nuclear energy cooperation, requires the adoption of countermeasures in relation to the US.’
The 2014 sanctions include assets freezes and travels bans, which were adopted in March (see here and here), and sectoral sanctions, which were adopted in July and which target Russia’s financial and energy sectors. In essence, this policy constitutes a response to Russia’s violation of Ukraine’s territorial and sovereign integrity, hence a breach of an obligation erga omnes. The sanctions are consistent with the American administration’s view that it may legitimately use its economic power to achieve its foreign policy and security goals and to defend essential norms of the international community. If the USA’s unilateral coercive measures do not amount to a violation of an obligation owed to Russia, the Kremlin would be barred from invoking the countermeasure argument. However, it has been suggested that the embargo on energy-related goods violates America’s obligations under the WTO-system, which Russia joined in 2012 (see Martin Dawidowicz ‘Third-Party Countermeasures: A progressive development of international law?’ (2016); and Rostam J. Neuwirth & Alexandr Svetlicinii, ‘The Economic Sanctions over the Ukraine Conflict and the WTO: “Catch-XXI” and the Revival of the Debate on Security Exceptions’ (2015). With regard to the 2013 Agreement, the USA’s refusal to cooperate is viewed by Russia as a breach of the Agreement’s provisions. Whether other obligations are violated needs to be determined on a case-by-case basis and a study of the bilateral agreements between the USA and Russia.
If – as Russia claims – the American sanctions would be wrongful, then Russia could conceivably attempt to right a wrong by adopting countermeasures. However, in as much as the American violation is a response to a previous violation of an obligation erga omnes attributable to Russia, they could qualify as third-party countermeasures. This raises further complications: not only is the legality of such measures an unresolved issue (for a contrary view see: Christian Tams, Enforcing Obligations Erga Omnes in International Law (2005); Martin Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and their relationship to the UN Security Council’ (2006); and Elena Katselli Proukaki, The Problem of Enforcement in International Law, countermeasures, the non-injured state and the idea of international community (2010)), the legal status of Russia’s suspension becomes all the more unclear. Indeed, how does one qualify a wrongful act adopted in reaction to an act whose legal status is uncertain?
It is this legal uncertainty and the fear of causing further escalation of a dispute that caused third-party countermeasures to be a subject of controversy during the drafting of the ILC’s Articles on State Responsibility, which, as is well known, were ultimately included in the Draft Articles as a savings clause (Responsibility of States for Internationally Wrongful Acts (2001)). Generally speaking, countermeasures – taken either in response to violations of bilateral obligations or community norms – were perceived as measures that could escalate a dispute rather than encourage cessation of a breach. This is one of the reasons why the Commission aspired to include provisions on the obligation to settle disputes peacefully (see, e.g., Fifth Report of the Special Rapporteur (1993)); however this proved to be unrealistic. Additionally, one of the recurring objections against third-party countermeasures was the fact that they are adopted unilaterally by States, without safeguards, and could potentially erode the UN Security Council’s powers. In the context of the Ukrainian crisis, it is clearly doubtful whether the USA is transgressing the Council’s competences as the organ is blocked from adopting measures under UN Charter Chapter VII. However, the sanctions are framed as illegitimate by Russia precisely because of their non-multilateral nature; they are described as an attempt to hurt Russia’s economy and interfere in its internal affairs. It is perhaps noteworthy that, as a matter of principle and of law, Russia frequently denounces the adoption of unilateral sanctions, as do BRICS States and the Non-Aligned Movement. Russia has, for example, argued that such measures violate the UN Charter (as illustrated by President Putin’s speech at the UN General Assembly in 2015) and condemned their practice in a joint declaration with China (a commentary is available here). The perceived illegitimacy of the sanctions has caused the target State to withdraw from mechanisms that have been set up to encourage bilateral or multilateral cooperation and to seek alternative alliances; Russian officials, including Prime Minister Medvedev, claim the West wants to start a new Cold War. Despite these criticisms, Russia has not held back from responding to the US sanctions against it by imposing its own coercive measures against the USA and other countries that have aligned with the anti-Russia sanctions. At present, reconciling Russia and the West does not appear any easier as both parties become further entrenched in their positions.
Against this backdrop, a potential solution to this conundrum may be to consider more seriously the effect sanctions (whether retorsions or countermeasures) have on State behaviour and their ability to encourage compliance with international law. Though the issues of legitimacy raised above are separate from questions of legality, they could have repercussions on the sanctions’ success in enforcing international law. If the targeted entity views the sanctions as illegitimate, it is more likely to develop policies of non-compliance and resistance, thus broadening the dispute. Admittedly, this post raises more questions than it is able to answer, however it is hoped (possibly naively) that these questions could trigger discussions on solutions or alternatives. If we aspire to a more stable international (legal) system, Russia’s – and like-minded countries’ – objections to the legitimacy of coercive measures merits consideration. In the meantime, we can only debate on the legality of third-party countermeasures and the implications for Russia’s unilateral suspension of the 2013 Agreement. If such measures are accepted as lawful, then Russia could most likely not invoke the countermeasure argument against the USA’s third-party countermeasures.