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.Footnote 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 countermeasures (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 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.Footnote 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 entities whose personal law is EU law [Panov, 2022, p. 143].

Fourth, EU law provides for a system of legal protection for individuals and legal entities subject to sanctions.

In accordance with Article 263 of the Treaty on the Functioning of the European Union (hereinafter referred to as TFEU), the EU Court of Justice examines the legality of legislative acts and acts of the EU Council. According to the general procedure (Artic-le 275 TFEU), the EU Court of Justice does not have the power to review the legality of Council acts adopted in the framework of the common foreign and security policy. However, this rule does not apply to claims of individuals and legal entities for the revision of restrictive measures. This means that decisions and regulations of the Council on the introduction of restrictive measures can be challenged in court on claims of interested individuals and legal entities.

At the same time, even in the case of contesting EU acts on the application of sanctions, the EU Court has limited competence [Entin, 2016, p. 95] since in fact it considers only issues related to the observance of the rights of individuals and legal entities, but not the validity of the sanctions themselves. In the Rosneft judgment C-72/15,Footnote 3 the court has repeatedly pointed out that the Council has a wide discretion in determining the purpose of the restrictive measures (paras. 88, 132). In other words, the court has no right to intervene either in issues of the validity of the imposition of sanctions or in issues of their specific content.

Based on the principles contained in the Guidelines for the implementation and evaluation of restrictive measures (sanctions) within the framework of the common foreign and security policy,Footnote 4 restrictive measures (sanctions) can be defined as measures applied by the Council within the framework of the common foreign and security policy in relation to certain states, organizations, and citizens for the purpose of changing the policies or activities of a given state, part of a state, government, organizations, or individuals in accordance with the EU foreign policy objectives set out in Article 21 TFEU.

The legal basis for the adoption of EU sanctions is Article 29 of the Treaty on the European Union (hereinafter referred to as the EU), as well as Article 215 TFEU. In accordance with the current EU legislation, the adoption of sanctions is carried out in two stages. In the first stage, the Council decides within the framework of the Common Foreign and Security Policy (CFSP) in accordance with Article 29 TEU.

At the second stage, the measures provided for by the above decision are put into effect either at the EU level or at the national level [Giumelli et al., 2022, p. 36].

By virtue of Article 24 TEU, any decisions taken under the CFSP require unanimity. Consequently, at the first stage, the decision to introduce restrictive measures is taken on the basis of consensus. In addition, such decisions are not formally legislative acts, but they are a necessary condition for the adoption of the relevant regulations that make up the legislation of the European Union. For the adoption of regulations in the second stage, the principle of a qualified majority is used. However, the adoption of such regulations is of a technical nature since they actually reproduce the provisions contained in decisions taken on the basis of unanimity.

Thus, the mechanism for implementing the sanctions policy is based on both the international legal and supranational components of the European Union [Meshcheryakova, 2018, p. 19].

As stated in the judgement of the EU court in the Rosneft case, the legal acts adopted at the two above levels have different functions: the decision declares the position of the European Union in relation to the restrictive measures to be taken, while the regulation is a document enacting these measures at the EU level (para. 90).

EU SANCTIONS POLICY IN RELATION TO THE RUSSIAN FEDERATION

There are currently three types of EU sanctions against Russia.

The first type is individual sanctions against specific citizens and organizations guilty, according to the European Union, of violating the sovereignty and territorial integrity of Ukraine. The first package of individual sanctions was adopted on March 17, 2014.Footnote 5

The second type of sanctions are restrictive measures against Crimea and Sevastopol, which were adopted on June 23, 2014, in response to the accession and full integration of the peninsula into Russia.Footnote 6

The third type is anti-Russian economic sanctions imposed on July 31, 2014, after the crash of the Malaysian Boeing.Footnote 7

After the recognition of the Donetsk People’s Republic (DPR) and the Lugansk People’s Republic (LPR) and the start of hostilities by the Russian Federation on the territory of Ukraine, the European Union significantly expanded anti-Russian economic sanctions, as a result of which, in addition to the existing economic restrictive measures, seven packages of sanctions were adopted (as of August 2022), providing for significant restrictions on transport, trade, visa policy, banking, energy, etc. [Potemkina, 2022].

However, the restrictive measures adopted in 2022 are not an independent type of sanctions; they are part of the economic anti-Russian sanctions adopted in July 2014. All types of restrictive measures are taken for a period of six months and are subject to extension in accordance with the same procedure that applies to their adoption.

As mentioned above, formally, the EU sanctions are a preventive tool that does not have the character of punishment. However, restrictive measures against Russia were taken in violation of this approach. In other words, the sanctions were introduced not as a preventive measure but as a punishment for Russia’s policy.

This, in particular, is evidenced by the preamble of Council Regulation (EU) no. 833/2014, which explicitly states that restrictive measures are taken “with a view to increasing the costs of Russia’s actions to undermine Ukraine’s territorial integrity, sovereignty, and independence and to promoting a peaceful settlement of the crisis.” Consequently, the main goal of the restrictive measures is not to change the policy of Russia but to punish it. Note that the specified goal, namely, to increase the costs of Russia for its actions to violate the sovereignty of Ukraine, was repeatedly pointed out by the EU court in the framework of the Rosneft case.

Initially, the European Union adhered to the concept of targeted sanctions [Timofeev, 2021, p. 21], the essence of which is that the greatest effect of sanctions should be aimed directly at decision makers and associated persons, but at the same time should minimally affect the population of the country [Zhbankov et al., 2015, p. 245]. However, the application of a new wave of sanctions against Russia in 2022 in connection with the start of the Russian military operation on the territory of Ukraine indicates that the European Union has moved away from the concept of targeted sanctions. The new restrictive measures adopted in 2022 are nonselective since they are aimed at causing maximum damage to Russia and, with it, to its entire population.

COMPLIANCE WITH INTERNATIONAL LAW

One of the key issues of the EU sanctions policy is the problem of correlation with the norms of international law. In the Russian scientific literature and information space, the point of view prevails according to which the restrictive measures of the European Union against the Russian Federation are illegal [Vlasov, 2016]. However, to determine the legality of restrictive measures, it is necessary to analyze not the sanctions policy as a whole, but just specific measures. In other words, the question of the legality of certain measures should be decided on the basis of an individual assessment.

It is quite obvious that individual sanctions related to the ban on entry into the EU countries by specific individuals do not contradict the requirements of either international law or internal EU law.

Regarding economic sanctions, the situation is different. The European Union is linked with Russia by a number of bilateral and multilateral agreements, including the Partnership and Cooperation AgreementFootnote 8 (hereinafter referred to as PCA), WTO agreements, etc.

In considering the preliminary request of the High Court of London in the Rosneft case, the EU Court of Justice noted that the current PCA does not exclude the possibility of applying unilateral restrictive measures since, according to Article 99, nothing in this Agreement prevents one of the Parties from taking any measures that it considers necessary to protect its essential security interests. In doing so, the Court considered that, given the Council’s wide discretion in this area, this body could conclude that the adoption of restrictive measures was necessary to protect the fundamental security interests of the European Union and to maintain peace and international security (para. 116).

Note that similar provisions for the essential interests and security clause are found in GATT 1947 (Article XXI)Footnote 9 and GATS (Article XIV bis).Footnote 10

However, the presence of the clause on the protection of essential interests and security does not mean that the EU anti-Russian sanctions are in line with international law.

First, no international legal act authorizes the European Union to recognize another state as guilty of violating international law and to apply measures of responsibility to such a state.

Second, the current international law does not deprive states or integration associations of applying protective restrictive measures of an economic nature, including to ensure their security. Regarding the situation under consideration, there was no immediate threat to the security of the European Union. Moreover, the EU countries themselves are actively involved in the conflict in Ukraine and, accordingly, are also responsible for the aggravation of the crisis.

Third, the nature of the restrictive EU measures, especially those adopted in 2022, makes it possible to conclude that a significant part of them go beyond the complete or partial suspension or reduction of economic and financial relations. In general, these measures are aimed at causing maximum economic and political damage to the Russian Federation. This clearly contradicts both EU law and the current principles of international law. In this regard, the restrictive measures taken in 2022 are more likely not economic but punitive.

In addition, measures such as freezing the assets of the Russian Federation and its individuals and legal entities, as well as their possible subsequent withdrawal, are clearly in conflict with the fundamental principles of modern law.

Of particular concern are the actions of the EU countries to restrict the transit of goods from the main part of the territory of Russia to the territory of Kaliningrad oblast. In June 2022, Lithuania notified the Russian authorities about its ban on the transit through its territory of goods that fell under restrictive measures. Later, the Commission prepared clarificationsFootnote 11 for member states on the application of restrictive measures in terms of “Kaliningrad transit.” According to these clarifications, the restrictions introduced do not prevent the transit of sanctioned goods transported by rail; such transit can be carried out under certain conditions. From the legal point of view, this document does not have legal force; nevertheless, it allowed a partial solution to the problem. However, in any case, the restriction of transit is clearly illegal.

First, freedom of transit is guaranteed by Article V of the GATT 1947.

Second, in accordance with Article 12 of the PCA, the parties (Russia, the European Union, and all member states) agree that the principle of freedom of transit is an essential condition for achieving the objectives of this Agreement.

Third, the ban on the transit of goods is not provided for by the EU regulations on the introduction of restrictive measures. In particular, in accordance with Regulation no. 833/2014 (as amended by Regulation no. 2022/576), there is a ban on the purchase, import, and transfer of certain types of goods; however, based on the literal interpretation of the relevant rules, there is no ban on the transit of goods, especially since they move from one part of the Russian Federation to another. In this regard, restrictions on cargo transit to Kaliningrad oblast are the result of a loose interpretation of the provisions of EU legal acts (excessive enforcement of sanctions),Footnote 12 as well as international legal obligations.

In addition, the issues of freight and passenger transit were specifically agreed upon by Russia and the European Union in the Joint Statement of April 11, 2002,Footnote 13 as well as the Joint Statement of April 27, 2004, on the issue of EU enlargement.Footnote 14 These statements refer to acts of soft law; however, they provided for specific legal procedures that were carried out by the parties.

It is necessary to raise on a separate basis the issue of restrictions in the field of air transport, namely the ban on the supply of aircraft and other aviation equipment, as well as the ban on the use of airspace. The Chicago Convention on International Civil Aviation of 1944Footnote 15 provides for the possibility, under exceptional circumstances, or during a state of emergency, or in the interests of public safety, to temporarily restrict or prohibit flights over its entire territory (Article 9). However, the provisions of the Convention are based on the principle of nondiscrimination, i.e., any rules regarding admission to its territory and release of aircraft shall apply to aircraft of all Contracting States without distinction (Articles 9, 11). Thus, here one can also see a violation of existing norms of international law.

Moreover, a ban on the use of airspace, as well as measures to ban the supply of aircraft and spare parts, creates risks for flight safety and aviation security and leads to increased flight time, higher fuel consumption, and, accordingly, an increase in the negative impact on the environment.

As part of the sanctions policy against Russia, significant funds were frozen, as well as property belonging to the Russian Federation and to private entities. Almost immediately after the freezing of assets, EU and Ukrainian politicians began to make proposals not just to freeze assets but to forcibly seize them. Of course, such ideas came into conflict with the key provisions of modern international and national law, as well as the principle of inviolability of private property.

On May 25, 2022, the Commission prepared the first package of draft laws aimed at legalizing the mechanism for seizing property and funds from individuals subject to sanctions. The essence of this mechanism is as follows. The European Union intends to criminalize acts related to the violation of the sanctions regime and, as one of the punishments, to provide for liability in the form of confiscation of property and funds.

Currently, criminal law is the responsibility of the EU member states, but Article 83 (1) TFEU gives the Union the power to harmonize criminal law in relation to particularly serious crimes of a cross-border nature. The list of crimes is defined in Article 83 (1) TFEU, however, by virtue of this provision, based on the development of crime and unanimity, the Council may decide to expand the specified list.

To achieve this goal, the Commission has prepared a draft decision of the Council, providing for the inclusion of violations of the EU sanctions regime among the most serious types of crimes of a cross-border natureFootnote 16 (Article 83 (1) TFEU). At the same time, the Commission prepared a draft directive on confiscation,Footnote 17 which defines the mechanism for tracing, identification, confiscation, and administration of property in criminal proceedings. To complete the creation of a mechanism for the withdrawal of funds, it is also necessary to adopt a directive on the harmonization of criminal liability for violation of EU restrictive measures.Footnote 18

In analyzing the proposed scheme, note that formally the mechanism for bringing to criminal liability for violation of restrictive measures and confiscation of property as a criminal punishment is consistent with existing practice. However, if we consider this situation as a whole, we will see that in essence this mechanism acts as the legalization of the illegal seizure of private property. After all, the condition for the onset of criminal liability is the fault of the person concerned.

In the situation under consideration, individuals acquire property in the European Union within the framework of the current national legislation and use it without violating local laws. Further, in the absence of any guilty actions on their part, the European Union imposes restrictions on this property, excluding the possibility of its use. In the event of an attempt to exercise the rights of the owner in relation to his/her own property, that person may be held criminally liable, and the property confiscated. It is unlikely that such a situation can be justified from the standpoint of a modern legal state.

In addition, in modern law, confiscation as a type of criminal punishment is applied to property that was acquired illegally as a result of a crime or acted as an instrument of crime. However, in this case, the legitimacy of the origin of property and funds subject to confiscation is likely to have no legal significance. Thus, the proposed mechanism for the seizure of property significantly undermines the principle of the rule of law, which is a key value and achievement of European integration.

CONCLUSIONS

The restrictive measures of the European Union by their nature act as sanctions since they are a means of punishment. However, from the legal point of view, they are not such since they are unilateral restrictive measures taken in accordance with the internal law of the European Union.

Even though the norms of international law, including WTO law, do not exclude the possibility of applying measures of an economic nature to other countries for security reasons, the restrictive measures of the European Union against the Russian Federation cannot be qualified as fully consistent with both international law and legal norms of the European Union itself. The legality of each EU sanctions measure needs to be checked on an individual basis for compliance with international law and commitments.

Regardless of the nature of the assessment of the actions of the Russian Federation in the framework of the military operation on the territory of Ukraine, most of the EU anti-Russian economic sanctions do not comply with international law and are inherently irrational and counterproductive. The application of sanctions measures in their current form, together with active arms deliveries before and after the outbreak of the hostilities, turned out to be the least effective means to ensure peace.