Unilateral “Anti-Russian” Sanctions: How to Strengthen Response

The article studies legality of unilateral, adopted in circumvention of UN Security Council, restrictive measures (unilateral sanctions) of Collective West states against Russia and Russian individuals, and elaborates proposals on strengthening efficiency of anti-sanctions response. Scientific basis of the article comprises studies of Russian and foreign specialists in the field of international law, international economic law as well as documents and materials of international organizations and international dispute settlement bodies. Methods applied are common scientific (analysis, synthesis, induction and deduction), special-juridical (formal-juridical, technical-juridical, legal analogy) and comparative-law method. The article concludes that though unilateral “anti-Russian” sanctions are introduced as a response to an alleged violation by Russia of its obligations in respect of Ukraine and should as such be assessed in light of rules on implementation of international responsibility of the states, do not comply with conditions, established by these rules. Unilateral sanctions also appear to violate general requirements of international investment and trade law while possibilities of their justification by exemptions from these general requirements may be narrowed, i.a. by virtue of systematic integration principle that obliges in the course of application of relevant exemptions to take into account the rules on implementation of international responsibility of the states, in light of which assessment of the unilateral sanctions shall be made and which appear to be violated by the initiators of the unilateral sanctions. In order to increase efficiency of anti-sanctions policy at strategic level it is proposed to contribute to such development of international law that would lead to formation of a rule explicitly prohibiting both “primary” and “secondary” unilateral sanctions while providing for a limited exclusion for measures that are directly allowed by rules on international responsibility of the states subject to their conditions. Draft of respective anti-sanctions clause is proposed based on a principle “no violation — no unilateral sanctions”, which clause could be applied in two variants: narrower prohibition (when signs of violation are established by sanctioning states themselves) and broader prohibition (when commitment of violation is exclusively established by a competent international dispute settlement body). At tactical level it is proposed in order to prevent legitimization of the unilateral sanctions in international law to apply to a maximum extent the possibilities already allowed by existing international law, including enhancement and tightening of international protest against “secondary” sanctions, challenge of sanctions in WTO and in international investment arbitration. It is also proposed to form a register of products and investments affected by the “anti-Russian” sanctions with focus on those categories that could benefit from protection of international economic law in order to make qualitative and quantitative assessment of a “regulatory leverage” that Russia and Russian business possess vis-à-vis Collective West.