Brussels, 17 November 2022
WK 15858/2022 INIT
LIMITE
COJUR
This is a paper intended for a specific community of recipients. Handling and
further distribution are under the sole responsibility of community members.
MEETING DOCUMENT
From:
Presidency
To:
Working Party on Public International Law
N° prev. doc.:
WK 10275/2022 INIT
Subject:
Revised paper on third-party countermeasures under international law
Dear Delegates,
With reference to document WK 10275/2022 INIT of 13 July 2022, please find attached the revised
version of the EEAS note on third-party countermeasures under international law, containing a few
updates and reflecting comments by Member States. (The document is relevant for the discussion under
agenda item 3.c of the forthcoming COJUR meeting.)
Best regards,
Czech Presidency Team
WK 15858/2022 INIT
LIMITE
EN
EUROPEAN EXTERNAL ACTION SERVICE
Third Party Countermeasures under International Law
A.
Introduction
Triggered by a reflection paper from the French Presidency1, the question of countermeasures
under international law triggered a broad debate in COJUR of 9 June 2022. Against the
background of the Russian invasion of Ukraine, delegations felt the need to clarify in how the
concept has evolved over time and asked the EEAS for input. In the COJUR meeting of 30
September, delegations generally welcomed the first version. Following written comments
from Estonia2 and oral comments from Austria during the meeting, the Czech Presidency
asked the EEAS to prepare a second version.
The EEAS thanks delegations for the precious input received. We start from the generally
accepted assessment that Russia’s use of force was an act of aggression3. It breached a
peremptory norm of international law (
ius cogens) from which no derogation is permitted. The
obligation not to use force is not only owed towards Ukraine, but towards the international
community as a whole (
erga omnes) and all States have legal interest in the protection of that
rule. However, it is less clear, how non-directly affected States, such as EU Member States
and the EU itself may react towards these breaches.
Under international law, such reaction may fall broadly into three type of categories. First, an
act may be qualified as a “retorsion”, i.e. an “unfriendly” acts not interfering with the
responsible State’s rights.4 Second, a reaction may infringe on certain treaty obligations owed
to Russia, but be justified under the treaty regime itself. Third, an act may constitute “conduct
taken in derogation from a subsisting treaty obligation, but justified as a necessary and
proportionate response to an internationally wrongful act of the State against which they are
1
WK 8174/2022 INIT, COJUR, of 7 June 2022.
2
WK 12708/2022 INIT, COJUR, of 26 September 2022.
3
United Nations General Assembly Resolution ES-11/1, ‘
Aggression against Ukraine’, adopted on
2 March 2022, para. 2.
4
ILC, Commentary on Draft Articles on Responsibility of States for Internationally Wrongful Acts, Ch. 2
para. 3, p. 128, YBILC 1991 (2) Part Two.
233
taken. They are essentially temporary measures, taken to achieve a specified end, whose
justification terminates once the end is achieved” (countermeasures) 5.
We therefore present first a summary of the different European responses to the Russian
invasion and present how they relate to international law (under
B.). Second, we dwell on the
ILC-Articles on countermeasures and pertinent recent State practice (
C.), before offering our
thoughts how such practice may have influenced customary international law on
countermeasures (under
D.). A conclusion (under
E.) is supposed to guide further debate
between Member States.
B.
EU Practice
In the aftermath of the Russian invasion of Ukraine, the EU and its Member States responded
with an unprecedented set of action in support of Ukraine and sanctions against Russia. While
they respond to an imperative political need, they also need to be in line with the EU’s treaty
obligations and customary international law, which is binding on the Union6. This chapter will
briefly examine to what extent they require justification under international law.
I. Military Assistance
Between February and October 2022, the Council adopted six successive decisions under the
European Peace Facility on the delivery of lethal weapons7 and other assistance8 to the
Ukrainian army. Under this scheme, the EU will reimburse up to 3.1 billion € of costs for the
delivery of heavy weapons and other material by Member States. On 17 October 2022, the
Council also deployed an EU Military Assistance Mission in support of Ukraine to enhance
the military capability of Ukraine Armed Forces (EUMAM).9
From the
ius ad bellum point of view, such action falls within the range of allowed military
cooperation between States. As Ukraine did not launch an armed attack on Russian territory
and did not invoke its right to self-defence under Article 51 UN-Charter, there is also no need
to invoke collective self-defence.
5
ILC, Commentary on Draft Articles on Responsibility of States for Internationally Wrongful Acts, Ch. 2
para. 4, p. 129, YBILC 1991 (2) Part Two, mentioning in particular the justification under Art. 60 of the
Vienna Convention on the Law of Treaties.
6
Article 3 (5) and 21 (1) TEU; ECJ, Case C-162/96 Racke (1998), ECR I-3688, paras. 45-46.
7
For the first decision see Council Decision (CFSP) 2022/338 of 28 February 2022 on an assistance
measure under the European Peace Facility for the supply to the Ukrainian Armed Forces of military
equipment, and platforms, designed to deliver lethal force (OJ 2022, L 60 , 28.2.2022, p. 1).
8
For the first decision see Council Decision (CFSP) 2022/339 of 28 February 2022 on an assistance
measure under the European Peace Facility to support the Ukrainian Armed Forces (OJ L 61,
28.2.2022, p. 1).
9
Council Decision (CFSP) 2022/1968 of 17 October 2022 on a European Military Assistance Mission in
support of Ukraine (EUMAM), OJ 2022, L 270, 18.10.2022, p. 85).
333
A different matter arises under the law of neutrality. While the supply of war material is
prohibited under the strict reading of Article 6 of Hague XIII (1907)10, international law has
evolved thereafter. With the introduction of a general prohibition on the use of force under the
Briand-Kellogg Pact (1928) and the UN Charter (1945), there is no obligation anymore to treat
the aggressor and the victim in a similar way. Henceforth, the status of “non-belligerency” has
replaced the principle of strict neutrality, without fully derogating from the entire law of
neutrality11. In particular, a non-belligerent State does not have to remain impartial with
respect to the aggression by helping the victim state. As long as it does not actively participate
in hostilities such non-belligerent State does not become a party to the armed conflict.
According to NATO Secretary-General Stoltenberg non-forcible responses should ensure that
the helping states do not become co-belligerents themselves.12 Despite some initial hesitation
whether training Ukrainian soldiers on new weapons might cross the line13, legal scholars
mostly reject this view as unfounded14. States would become parties to the international armed
conflict between Russia and Ukraine only if they resort to armed force against Russia, for
example by15:
(1) Any direct military engagement in hostilities in a collective manner, i.e. as a result
of a decision taken by the organs of the State;
(2) Any indirect military engagement that would consist of taking part in the planning
and supervision of military operations of another State; or
10
See, in particular Article 6 of the Convention concerning the Rights and Duties of Neutral Powers in
Naval War. The Hague, 18 October 1907 (Hague XIII); as well as Articles 5, 9 and 10 of the Convention
respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague,
18 October 1907 (Hague V).
11
C. Walter, Der Ukraine-Krieg und das wertebasierte Völkerrecht, Juristenzeitung 10/2022, p 473, at p.
478 with further references.
12
NATO Secretary General Jens Stoltenberg, 24 March 2022, Doorstep statement at the start of the
extraordinary Summit of NATO Heads of State and Government, available at:
https://www.nato.int/cps/en/natohq/opinions_193611.htm.
13
See e.g. the opinion of the scientific service to the German Parliament (Wissenschaftlicher Dienst des
Deutschen Bundestags),
Rechtsfragen der militärischen Unterstützung der Ukraine durch NATO-
Staaten zwischen Neutralität und Konfliktteilnahme, WD 2 - 3000 - 019/22, published 16 March 2022,
p. 6: „
One would only leave the safe area of non-belligerency, when besides the supply of arms, also the
instruction or training to use those arms of one of the conflict parties were in question”).
14
Oona Hathaway/Scott Shapiro,
Supplying Arms to Ukraine is Not an Act of War in Lawfare, 12 March
2022, https://www.lawfareblog.com/supplying-arms-ukraine-not-act-war; Stefan Talmon,
Kriegspartei
oder nicht Kriegspartei? Das ist nicht die Frage in VerfBlog, 4 May 2022,
https://verfassungsblog.de/kriegspartei-oder-nicht-kriegspartei-das-ist-nicht-die-frage/,
DOI:
10.17176/20220505-062322-0; and Michael N. Schmitt,
Providing Arms and Materiel to Ukraine:
Neutrality, Co-belligerency, and the Use of Force, 7 March 2022, available at:
https://lieber.westpoint.edu/ukraine-neutrality-co-belligerency-use-of-force/.
15
Julia Grignon,
« Co-belligerency » or when does a State become a party to an armed conflict?, 6 May
2022, available at: https://www.irsem.fr/media/sb-39-grignon-cobelligerency.pdf.
433
(3) Making available its own military bases to allow foreign troops to enter the territory
of the State in conflict (hypothesis of Belarus), or making available its air bases to
allow planes to take off to bomb troops on that territory, or implementing a no-fly zone.
As this is not the case for either the reimbursement of the costs for weapons delivery to Ukraine
nor for the training of Ukraine armed forces on European soil, such action is also in compliance
with the law of neutrality and does not make the EU or any Member State party to the armed
conflict between Russia and Ukraine.
II. Economic Sanctions – Embargos and transit restrictions
So far, the Council adopted eight packages of restrictive measures (“sanctions”) based on
Article 29 TEU (Council Decisions) and Article 215 TFEU (Council Regulations). Sanctions
may provide “for the interruption or reduction, in part or completely, of economic and
financial relations with one or more third countries” (Article 215 para. 1 TFEU). Leaving aside
the Russian rhetoric that economic sanctions would be “akin to an act of war”16, they generally
do not pose questions under international law as there is no general duty to entertain economic
or financial relations with Russia. Similarly, the longstanding practice of the General
Assembly to complain against “unilateral economic coercion against developing countries” is
not pertinent, as Russia is not a developing country17 and the threshold of “coercion”18 is not
automatically surpassed by an embargo19. Rather, as argued by the Commission in its recent
proposal on the protection of the Union and its Member States from economic coercion by
third countries, several cumulative criteria need to be fulfilled before qualifying economic
pressure as coercion20.
16
Luke Harding,
Defiant Putin warns the west: your sanctions are akin to an act of war, 5 March 2022 in
The Guardian, https://www.theguardian.com/world/2022/mar/05/defiant-putin-warns-the-west-your-
sanctions-are-akin-to-an-act-of-war.
17
Following GA Resolution 68/200 the UN-Secretary General prepared a report on “unilateral economic
measures as a means of economic and political coercion against developing countries (A/70/172) of 16
July 2015. Only 20 UN Member States participated in the survey. From the EU, Latvia stated: “Latvia
does not agree with the imposition of unilateral economic measures as instruments of political and
economic coercion against developing countries”; and criticised the Russian food embargo against the
European Union from 2012-2014, which also affected Latvia.
18
According to the ICJ,
Case concerning military and paramilitary activities in and against Nicaragua
(Nicaragua v. USA), Judgment of 27 June 1986, ICJ Reports 1986, pp. 14-150, at para. 205: “the element
of coercion defines, and indeed forms the very essence of, prohibited intervention”.
19
See ICJ,
Nicaragua (note 18), at paras. 244-245; ILC, Draft Articles on the responsibility of States for
internationally wrongful acts, YBILC 1991 (2) Part Two, Commentary on Chapter Two
(Countermeasures), point (3), at p. 128: “Acts of retorsion may include the prohibition of or limitations
upon normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of
voluntary aid programmes.
20
COM(2021) 775 final of 8.12.2021, pp. 14.15: Article 2 of the proposed regulation lists five criteria
and Recital 11 explains: “Coercion is prohibited under international law when a country deploys
measures such as trade or investment restrictions in order to obtain from another country an action or
inaction which that country is not internationally obliged to perform and which falls
533
The situation changes, however, if certain treaty commitments are touched upon.
In that respect, three aspects of the EU’s economic sanctions need further scrutiny. First, the
EU imposed an embargo on Russia in relation to, amongst others, coal and other solid fuels,
on 8 April 2022. It justified this sanction as follows: “[i]
n view of the gravity of the situation,
and in response to Russia’s military aggression against Ukraine, it is appropriate to introduce
further restrictive measure.”21 In the sixth package, the EU extended the embargo to cover oil
products22. Accordingly, such products cannot enter into the Union market anymore. Second,
sanctioned goods can also not cross the transit route from Kaliningrad (via Lithuania) to other
parts of Russia anymore. Third, the EU has imposed a couple of export restrictions towards
Russia. They concern arms, dual-use goods and goods and technology which might contribute
to Russia’s military and technological enhancement, or the development of the defence and
security sector23.
These measures raise questions under the GATT and the EU-Russia Partnership and
Cooperation Agreement.
1. GATT
Prima facie, the three quoted EU restrictions violate Articles XI GATT (import and export
embargoes are the most severe form of a quantitative restriction) and Article V GATT
(freedom of transit). However, they are justified under Article XXI GATT, which reads:
Article XXI - Security Exceptions
Nothing in this Agreement shall be construed
within its sovereignty, when the coercion reaches a certain qualitative or quantitative
threshold, depending on both the ends pursued and the means deployed. The
Commission should examine the third-country action on the basis of qualitative and
quantitative criteria that help in determining whether the third country interferes in the
legitimate sovereign choices of the Union or a Member State and whether its action
constitutes economic coercion which requires a Union response.”
21
Council Regulation (EU) 2022/576 of 8 April 2022, amending Regulation (EU) No. 833/2014
concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine,
preamble para. 6, (OJ L 111 of 8.4.2022 p. 1).
22
Council Decision (CFSP) 2022/884 of 3 June 2022 amending Decision 2014/512/CFSP concerning
restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 153/128 of
3.6.2022 p.128) and Council Regulation (EU) 2022/879 of 3 June 2022 amending Regulation (EU) No
833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in
Ukraine (OJ L 153 of 3.6.2022, p.53).
23
Articles 2, 3 and 3a of Council Decision (CFSP) 2014/512/CFSP concerning restrictive measures in
view of Russia’s actions destabilising the situation in Ukraine (consolidated version of 4 June 2022) and
Articles 2 and 2a of Council Regulation (EU) No. 883/2014 concerning restrictive measures in view of
Russia’s actions destabilising the situation in Ukraine (consolidated version of 4 June 2022).
633
[…]
(b) to prevent any contracting party from taking any action which it considers
necessary for the protection of its essential security interests
[…]
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its
obligations under the United Nations Charter for the maintenance of international
peace and security.24 [emphasis added]
On 5 April 2019, a WTO panel issued a landmark ruling in a dispute between Russia and
Ukraine in which it confirmed its jurisdiction over Article XXI GATT25. In that case, Russia
had invoked the exception to justify measures that blocked trade between Ukraine,
Kazakhstan, and the Kyrgyz Republic in transit through Russia. Russia had claimed it had
adopted these measures in response to escalating events in Ukraine after political turmoil there
in 2014.
Russia and the United States emphasized the phrase that the WTO agreements should not
prevent any member “from taking actions which
it considers necessary for the protection of
its essential security interests”. According to them, the wording “it considers necessary” makes
clear that only the member invoking the national security exception can determine whether
the measure taken is in its own national security interests (“self-judging norm”). The US also
argued that judgment by another body of what is in the U.S. national security interest or
whether a measure is necessary to protect U.S. national security would be an inappropriate
breach of national sovereignty26.
The WTO panel rejected the Russian (and US) arguments. It determined that actions taken
under Article XXI(b) GATT are reviewable, as the discretion of a Member to define its
essential security interest is limited to circumstances that objectively fall within the scope of
the three subparagraphs of Article XXI(b)27. Turning to the latter, it affirmed that there was
(at least) an emergency in international relations and a link to the measures. Russia had
therefore met the requirements for invoking Article XXI(b)(iii) in relation to the measures at
issue. Accordingly, the Russian transit bans and restrictions were covered by Article
XXI(b)(iii) of the GATT 1994.
If follows that the security exception can be invoked in a time of war or emergency in
international relations to justify measures that have a plausible connection to the national
security interest cited by the respondent in a dispute.
24
Article XXI, GATT.
25
WTO Report of the Panel, 5 April 2019, ‘
Russia – Measures concerning Traffic in Transit’,
WT/DS512/R.
26
William Reinsch,
The WTO’s First Ruling on National Security: What Does It Mean for the United
States?
in
Center
for
Strategic
&
International
Studies,
5
April
2019,
https://www.csis.org/analysis/wtos-first-ruling-national-security-what-does-it-mean-united-states.
27
Panel Report of 5 April 2019 (note 24), p. 50, paras 7.53-7.101.
733
This test is met here: The EU import embargoes and transit restrictions are taken in a situation
of war or international emergency; they also protect an essential security interest of the EU as
they are designed to stop the Russian aggression against Ukraine, which breaches a
jus cogens norm and destabilises the security situation on the entire continent.
This view is shared by the EU’s main trading partners. On March 15, 2022, a group of States
said: “
We will take any actions, as WTO members, that we each consider necessary to protect
our essential security interests. These may include actions in support of Ukraine, or actions
to suspend concessions or other obligations with respect to the Russian Federation, such as
the suspension of most-favoured-nation treatment to products and services of the Russian
Federation.”28
On the same day, Russia protested29 arguing that the WTO does not provide for the ability to
suspend its membership rights or to expel it from the WTO. Second, Russia called the
withdrawal of MFN treatment for Russian goods and services “unilateral” and “unjustified,”
and stated that it violates the WTO principle of non-discrimination. However, it did not start
any dispute settlement procedure so far.
2. EU-Russia Partnership Agreement
A similar line of reasoning can also be applied under the EU-Russia Partnership and
Cooperation Agreement of 199430. Any violation of Articles 10 (quantitative restrictions) or
Article 12 (freedom of transit) of the PCA is justified by Article 99 (1) PCA (national security).
Article 99 reads:
‘Nothing in this Agreement shall prevent a Party from taking any measures:
(1) which it considers necessary for the protection of its essential security interests:
[...]
(d) in the event of serious internal disturbances affecting the maintenance of law and
order, in time of war or serious international tension constituting threat of war or in
order to carry out obligations it has accepted for the purpose of maintaining peace
and international security;’ [emphasis added]
28
Joint Statement on Aggression by the Russian Federation against Ukraine with the support of Belarus;
Communication from Albania, Australia, Canada, European Union, Iceland, Japan, Republic of Korea,
Republic of Moldova, Montenegro, New Zealand, North Macedonia, Norway, United Kingdom, and
United States of 15 March 2022. WTO General Council Document WT/GC 244.
29
US and Multilateral Russia-related Trade Policy and Import Restrictions, Akin Gump, 22 March 2022,
https://www.akingump.com/en/news-insights/us-and-multilateral-russia-related-trade-policy-and-
import-restrictions.html.
30
The Agreement on partnership and cooperation establishing a partnership between the European
Communities and their Member States, of one part, and the Russian Federation, of the other part, signed
in Corfu on 24 June 1994 and approved in the name of the European Communities by Council and
Commission Decision 97/800/ECSC, EC, Euratom of 30 October 1997 (OJ 1997 L 327, p. 1).
833
The European Court of Justice has already ruled on the relationship between EU sanctions
(taken in response of the Russian annexation of Crimea and Russian action in eastern Ukraine)
and that provision. In the Rosneft case it found that the adoption of restrictive measures by the
Council “
was necessary for the protection of essential European Union security interests and
for the maintenance of peace and international security, within the meaning of Article 99 of
the EU-Russia Partnership Agreement”.31
Both the 2014 and the present EU sanctions are a reaction to a severe breach of international
law by Russia, which has created a state of emergency in international relations. They serve
the protection of the EU’s essential security interests among which figures the maintenance of
peace and security in its vicinity. Therefore, the EU can also invoke Article 99 PCA in the
present context.
Russia is entitled to bring “any dispute relating to the application or interpretation” of the
agreement to the Cooperation Council under Article 101 PCA and initiate a conciliation
procedure. However, as this Council did not meet since 2001, that scenario seems unlikely.
III. Financial Sanctions – Restrictions on dealing with assets of the Russian Central Bank
On 28 February 2022, the EU enacted a prohibition of transactions with assets of the Central
Bank of Russia as part of its sectoral sanctions until 31 January 2023:
“
Transactions related to the management of reserves as well as of assets of the Central
Bank of Russia, including transactions with any legal person, entity or body acting on
behalf of, or at the direction of, the Central Bank of Russia, such as the Russian National
Wealth Fund are prohibited.”32
On 1 March 2002, commerce with Euro banknotes was restricted with Russian entities,
including with the Central Bank:
“
It shall be prohibited to sell, supply, transfer or export euro denominated banknotes
to Russia or to any natural or legal person, entity or body in Russia, including the
government and the Central Bank of Russia, or for use in Russia“33
From a technical point of view, these prohibitions does not directly freeze the assets of the
Central Bank. However, they restrict the possibility of the Central Bank for Russia to do
business in Europe, as all partners around it are not allowed to engage into transactions. The
effect of the prohibition is therefore very close to a direct freeze of assets. According to the
31
ECJ judgment in case C-72/15,
Rosneft [ECLI:EU:C:2017:236], paras. 113-116.
32
Article 1(1) of Council Decision (CFSP) 2022/335 of 28 February 2022, amending Decision
2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation
in Ukraine and Article 5a(4) of Regulation 833/2014, (OJ L 57 of 28.2.2022, p.4).
33
Article 1(1) of Council Decision (CFSP) 2022/346 of 1 March 2002, amending Decision
2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation
in Ukraine and Article 5i (1) of Regulation 833/2014, (OJ L 61 of 2.3.2022, p.1).
933
Russian constitution, the Russian Central Bank is an independent entity with the primary
responsibility of protecting the stability of the national currency. The question therefore arises
whether rules of State immunity may play a role.
Under general international law, States enjoy prescriptive, adjudication and enforcement
jurisdiction. The former includes the power to legislate with respect to its territory (territorial
principle), and to its nationals (nationality principle). States may also regulate situations in
order to protect essential security interests (protective principle) or universal values (universal
jurisdiction). Within the realm of these accepted boundaries of jurisdiction, States may
regulate also the behaviour of other States and impose obligations on their citizens how to deal
(or refrain from dealing) with other State organs. Accordingly, the above legislative
prescription to impose temporary obligations on persons falling under EU jurisdiction not to
engage in transactions relating to the management of assets of the Russian Central Bank in EU
Member States are in line with international law.
Turning to adjudication and enforcement jurisdiction, international rules on immunity need to
be complied with. These are laid down in the 2004 United Nations Convention on
Jurisdictional Immunities of States and their Property (‘UN Immunity Convention’), which is
not yet in force but increasingly agreed upon to reflect customary international law.34
Under Article 2 (1) of the UN Immunity Convention, immunity does not only refer to state
organs. Rather, Article 2(1)(b)(iii) of the Convention includes the agencies or instrumentalities
of the State or other entities, to the extent that they are entitled to perform and are actually
performing acts in the exercise of sovereign authority of the State. This definition covers a
central bank of a State, even if it may engage in commercial conduct35. Accordingly, the
property of the Russian Central Bank is covered by its rules.
Under Article 5, a State enjoys immunity for itself and for its property before foreign courts
as a general principle (“jurisdictional immunity”). However, if a central bank engages in
commercial transaction, such immunity cannot be invoked for such commercial action (Art.
10 para. 1).
Under Article 19 of the UN Immunity Convention, “enforcement immunity” (also referred to
as immunity from execution) no post-judgment measures of constraint, arrest or execution
may be taken against property of another State, unless it is used for commercial purposes
(Article 19 (c)). However, with respect to central bank assets, Article 21 (1) (c) of the
Convention clarifies that they do not fall within the remit of this exception. It can hence be
34
See inter alia Lord Bingham in
Jones v. Ministry of Interior of Saudi Arabia [2006] UKHL 26; [2007]
1 AC 270, at 26: “Despite its embryonic status, this Convention is the most authoritative statement
available on the current international understanding of the limits of state immunity in civil cases”; Lord
Hoffmann (ibid at 47) saw the 2004 Convention as a codification of the law of state immunity; this was
also the opinion of Advocate General Szupnar, Case C-641/18,
LG and Others v Rina SpA and Ente
Registro Italiano Navale, Opinion of, 14 January 2020, para. 38.
35
Ingrid Wuerth,
Immunity from Execution: Central Bank Assets in Tom Ruys/Nicolas Angelet (ed.),
Cambridge Handbook on Immunities and International Law, 2019, p. 278.
1033
concluded that the assets of a central bank enjoy an absolute enforcement immunity under the
UN Immunity Convention from judicial and post-judicial measures.36
Importantly, the entire Convention only focuses only on judicial proceedings, as explained by
the ILC at the time37. Accordingly, the wording of Article 19 of the Convention limits the
concept to measures taken in connection with a proceeding before a court.38 At the same time,
the Convention does not regulate other forms of immunities. As the preamble observes, these
continue to be governed by rules of customary international law.
In this respect, doctrine seems to be divided. Drawing from the concept of sovereign equality,
some scholars argue that immunity from execution comprises any kind of measure of
constraint, such as administrative or legislative measures.39 Therefore, also the administrative
freezing of central bank assets would infringe
per se State immunity and can only be justified
as a countermeasure40. Others point to the narrow judicial context of the term enforcement
immunity. For them, immunity does not apply to administrative or legislative measures.41
Behind these competing views, one may also detect two different purposes of granting
immunity. For the first school of thought, the main rationale of immunity is to protect the
liberty of a State to manage its property located in other States (“freedom”)42. From that
perspective, it does not matter whether the constraints on its property are imposed by judicial,
36
Ingrid Wuerth (note 35), p. 269.
37
ILC Commentary to the Draft Articles on the UN Convention, Yearbook of the ILC 1991 II (Part Two),
Article 1, para 2: “The concept therefore covers the entire judicial process, from the initiation or
institution of proceedings, service of writs, investigation, examination, trial, orders which can constitute
provisional or interim measures, to decisions rendering various instances of judgments and execution of
the judgements thus rendered or their suspension and further exemption”.
38
See also ILC Commentary to the Draft Articles on the UN Convention, Yearbook of the ILC 1991 II
(Part Two), Article 18, para 1, “Article 18 concerns immunity from measures of constraint only to the
extent that they are linked to a judicial proceeding”.
39
See, e.g., Jean-Marc Thouvenin/Victor Grandaubert,
Material Scope of State Immunity from Execution in Tom Ruys/Nicolas Angelet (ed.), Cambridge Handbook on Immunities and International Law, 2019,
p. 247.
40
P.-E. Dupont, Countermeasures and Collective Security, The Case of EU Sanctions Against Iran,
Journal of Conflict and Security Law, 17 (2012), pp. 301-336 (manuscript online at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086415; pp. 1- 35, at p. 14, qualifying EU
sanctions against the Iranian central bank as countermeasures): Martin Dawidowicz, Third Party
Countermeasures in International Law, 2017, mentions the asset freezes of central banks as examples
for countermeasures (pp. 112-113) and applies this notion in the cases of Libya and Syria (pp. 220; 222-
223).
41
See Tom Ruys,
Immunity, Inviolability and Countermeasures – A Closer Look at Non-UN Targeted
Sanctions, in Tom Ruys/Nicolas Angelet (ed.), Cambridge Handbook on Immunities and International
Law, 2019, p. 685.
42
S. Schmahl, Völker- und europarechtliche Implikationen des Ukrainekriegs, Neue Juristische
Wochenschrift 2022, 969, p. 973, stressing as the purpose of enforcement immunity the protection
foreign property which is dedicated to serve public purposes.
1133
administrative or legislative means of another State. The other school of thought may derive
its conclusion from the principle that one State should not sit as a judge over another State
(“equality”). From that viewpoint, only the judicial arrogation of power by one State over
another State is illegal, whereas States have to live with the fact that other States take
legislative and administrative decisions on their territory affecting their property.
In that respect, it may be useful to recall the finding of the ICJ in
Jurisdictional Immunities of
the State:
The Court considers that the rule of State immunity occupies an important place in
international law and international relations. It derives from the principle of sovereign
equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes
clear, is one of the fundamental principles of the international legal order. This principle has
to be viewed together with the principle that each State possesses sovereignty over its own
territory and that there flows from that sovereignty the jurisdiction of the State over events
and persons within that territory. Exceptions to the immunity of the State represent a departure
from the principle of sovereign equality. Immunity may represent a departure from the
principle of territorial sovereignty and the jurisdiction which flows from it.43
This dictum seems to suggest that any “departure” from the principle of territorial sovereignty
needs to be construed narrowly. However, the ICJ has not been able to clarify this position in
more detail so far. In an April 2016 letter, Iran complained against US legislative and judicial
practice to confiscate assets from the Iranian Central Bank to the UN Secretary-General44. In
June 2016, a legal action before the ICJ followed. In that case, Iran claims that several US
action, leading US courts to award damages for alleged State-sponsored terrorist acts to private
litigants, are violating the principle of immunity45. However, in its judgment of February 2019
on American preliminary objections, the ICJ established that no provision of the 1955 FCN
Treaty between the parties allowed it to exercise jurisdiction over the question whether
denying sovereign immunity of the Iranian Central Bank in the United States amounted to a
treaty breach46. Accordingly, the ICJ had no authority on interpreting the scope of immunity
of central banks.
43
Jurisdictional Immunity of the State (Germany v. Italy, Greece intervening), Judgment of 3 February
2012, pp. 123-124, para. 57.
44
Letter dated 28 April 2016 from the representative of Iran to the UN Secretary-General,
https://digitallibrary.un.org/record/828768?ln=en.: “It is a matter of grave concern that the United States
Congress, along with other branches of the United States Government, seem to believe that they can
easily defy and breach the fundamental principle of State immunity by unilaterally waiving the
immunity of States and even central banks in total contravention of the international obligations of the
United States and under a groundless legal doctrine that the international community does not
recognize.”
45
Certain Iranian Assets (Islamic Republic of Iran v. USA), Application of Iran of 14 June 2016, para. 7.
46
Certain Iranian Assets (Islamic Republic of Iran v. USA), Judgment on Preliminary Objections of 13
February 2019, paras. 48-80. The ICJ concluded at para. 80: Consequently, the Court finds that Iran’s
claims based on the alleged violation of the sovereign immunities guaranteed by customary
1233
In this situation, it seems useful to have recourse to recent State practice. When the US Office
for Foreign Asset Control (OFAC) enacted restrictions on dealing with assets of the Russian
bank in the United States in 2022, it held that the Foreign Sovereign Immunities Act does not
apply. The reasoning behind is that OFAC action does not involve a court nor any form of
enforcement or execution of a judgment47. Consequently, the US government seems to argue
currently that there is no rule under customary international law to prohibit the administrative
freeze of Russian Central bank assets. Similarly, the United Kingdom amended its Russia
Sanctions Act 48 to prohibit transactions with the Russian Central Bank without being
concerned with sovereign immunities. A similar reading is possible for the EU measures in
question. There is no evidence that the adoption of Articles 5a(4) or Article 5i(1) of Regulation
833/2014 was considered by the High Representative, the Commission (when proposing the
act) or the Council (when adopting it) as infringing on State immunity of Russian central bank
assets. Accordingly, the EU did not consider that there was a rule of customary law on central
bank immunity against legislative or administrative measures from which it had to depart by
taking a collective countermeasure.
IV. Targeted sanctions – Freezing of Assets
Under Article 215 (2) TFEU, the EU also regularly targets “natural or legal persons and groups
or non-State entities”. They are prohibited from using their funds as a temporary and
preventive measure (“freezing”). On 10 March 2022, the EU extended existing restrictive
measures first enacted on 17 March 2014 and prolonged on 10 September 2021 both in time
until 15 September 2022. They cover now over 1000 individuals and more than 50 entities. So
far, such EU restrictive measures adopted under Articles 29 and 215 TFEU have been of a
temporary and non-punitive nature49.
Such action interferes with the right to property of private and legal persons, protected under
the European Charter on Fundamental Rights and Article 1 of the First Additional Protocol to
the ECHR. However, such interference may be justified by overriding public interests. In the
Bosphorus case (the impounding of an aircraft by Irish authorities in application of EC
Regulation 990/93/EC), the ECJ held
international law do not relate to the interpretation or application of the Treaty of Amity and, as a
result, do not fall within the scope of the compromissory clause in Article XXI, paragraph 2. Thus, in
so far as Iran’s claims concern the alleged violation of rules of international law on sovereign
immunities, the Court does not have jurisdiction to consider them.
47
Ingrid Wuerth,
Does Foreign Sovereign Immunity Apply to Sanctions on Central Banks? in Lawfare,
07
March 22,
www.lawfareblog.com/does-foreign-sovereign-immunity-apply-sanctions-central-banks.
48
https://www.legislation.gov.uk/uksi/2022/194/contents/made.
49
ECJ judgment in Joined Cases C-402/05 P and C-415/05 P,
Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council of the European Union and Commission of the European
Communities, ‘
Kadi I’, [ECLI:EU:C:2008:461], para. 358 that reads: “That freezing measure constitutes
a temporary precautionary measure which is not supposed to deprive those persons of their
property.(…)”.
1333
’
25. It is in the light of those circumstances that the aim pursued by the sanctions
assumes especial importance, which is, in particular, in terms of Regulation No 990/93
and more especially the eighth recital in the preamble thereto, to dissuade the Federal
Republic of Yugoslavia from 'further violating the integrity and security of the Republic
of Bosnia-Herzegovina and to induce the Bosnian Serb party to cooperate in the
restoration of peace in this Republic.
’26. As compared with an objective of general interest so fundamental for the
international community, which consists in putting an end to the state of war in the
region and to the massive violations of human rights and humanitarian international
law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question,
which is owned by an undertaking based in or operating from the Federal Republic of
Yugoslavia, cannot be regarded as inappropriate or disproportionate.’50
The applicant later brought the case against Ireland to the European Court of Human Rights
(‘ECtHR’). The Strasburg Court noted that Ireland implemented EU law. As the EU provided
an ‘equivalent protection’ in its legal order, there was a presumption that Ireland did not violate
its obligations under Art. 1 of the First Additional Protocol and the case was dismissed.51
At the same time, implementing UN sanctions does not absolve the EU from complying with
its due process obligations. Targeted persons therefore must be heard and receive a proper
statement of reasons so that both the ECJ and the ECtHR can review targeted sanctions.52
Since then, the Court has repeated such reasoning also with respect to EU autonomous
sanctions.53 It can be concluded, that human rights law in Europe is unlikely to impede
temporary targeted sanctions as a reaction to massive violations of international law, as long
as due process rights of the targeted persons54 are observed.
V. Criminal sanctions – Seizing of Assets
The situation is different when it comes to expropriations, which would serve the
reconstruction of Ukraine. Even though expropriations can be lawful when they fulfil a public
50
Case C-84/95, Bosphorus, [1996] ECR I-3953, paras. 25, 26.
51
ECtHR,
Bosphorus v. Ireland, 30.6.2005, application no. 45036/98.
52
See for the ECJ: Joined Cases C-402/05 P and C-415/05 P,
Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council of the European Union and Commission of the European
Communities, ‘
Kadi I’, CJEU Judgment 3 September 2008, paras. 321-322; Joined cases C-584/10 P,
C-593/10 P and C-595/10
P European Commission and Council of the European Union v Yassin
Abdullah Kadi, ‘
Kadi II’, CJEU Judgment 18 July 2013, . 133-134; see for the ECtHR:
Al-Dulimi and
Montana Management Inc v Switzerland App no 5809/08, ECtHR Judgment 26 November 2013.
53
See
inter alia: T-160/13
Bank Mellat / Council, Judgment of 2 June 2016 (cf. 231-240); T-715/14
NK
Rosneft e.a. / Council, Judgement of 13 September 2018 (cf. p. 133); T-286/18
Azarov / Council,
Judgement of 11 September 2019 (cf. 58-62) ; C-58/19 P
Azarov / Council, Order of 22 October 2019
(cf. 28-32, 36-38, 42, 43); T-286/19
Azarov / Council, Judgement of 16 December 2020.
54
In C-872/19 P, Venezuela, judgment of 22 June 2021, the ECJ also allowed a third State itself to
challenge EU targeted measures in specific circumstances.
1433
purpose, are non-discriminatory and are carried out under a due process, they normally require
prompt, adequate and effective compensation at market rate under the European Convention
on Human Rights55.
The same is true under international investment rules56. While Russia stopped its provisional
application of the Energy Treaty Charter in August 2009 and cannot avail itself of Article 13
thereof anymore57, the legal basis for Russian compensation claims can still be found in
customary international law (law of aliens) or specific guarantees stemming from bilateral
investment treaties with Russia. Russia currently has 62 bilateral investment treaties in force,58
including 27 bilateral investment treaties with so-called
unfriendly States.59
Finally, expropriation without compensation could also backfire, as assets of EU persons and
companies in Russia might be exposed to similar treatment. Against that background, the EU
has not adopted any sanction decision to seize assets of targeted persons.
However, the EU explored the option to broaden the scope for asset forfeiture as a result of a
criminal conviction, including for cases of corporate criminal activities60. If a targeted person
commits a punishable offence, a trial judge can order the seizure of his assets. The Commission
proposed to make the violation of EU sanctions a “EU-crime” under Article 83 (1) TFEU.61
Once the proposed Council decision is adopted, the EU legislator could then enact an EU
Directive with more concrete elements, under which circumstances the violation of EU
sanctions should be criminalized under national law. In the meantime, a couple of Member
55
See the judgment of the ECtHR of 13 July 2021 in cases
Todorov and others v Bulgaria (applications
nos. 50705/11 and 6 others), pp 179-199 and the case law referred to therein.
56
See K. Nadakavukaren Schefer, International Investment Law, 2nd ed. 2016, pp. 190 et seq.
57
Under Article 47 (3) ECT, the protections offered under the Energy Charter continue to apply for 20
years after a withdrawal of a State from the Charter. Since the ECT never entered into force for the
Russian Federation and there was never a withdrawal from the ECT, its conditions are not met to invoke
the Charter. For the pending Yukos dispute on pre-2009 investments see
Supreme Court quashes Court
of Appeal’s Judgement in arbitration case Yukos, 5 November 2021, Hogeraad,
https://www.hogeraad.nl/actueel/nieuwsoverzicht/2021/november/supreme-court-quashes-court-
appeal-judgement-arbitration-case-yukos/.
58
See United Nations Conference on Trade and Development (“UNCTAD”), Investment Policy Hub,
https://investmentpolicy.unctad.org/international-investment-agreements/countries/175/russian-
federation.
59
Albania; Austria; Belgium; Bulgaria; Canada; the Czech Republic; Denmark; Finland; France;
Germany; Greece; Hungary; Italy; Japan; Lithuania; Luxembourg; the Netherlands; North Macedonia;
Norway; Romania; Singapore; Slovakia; South Korea; Spain; Switzerland; Ukraine; and the United
Kingdom.
60
See inter alia: Linde Byrk/Goeran Sluiter,
Russia: Academic analysis shows why companies should
cease business activities to avoid corporate criminal liability risks, 22 March 2022, available at:
https://www.business-humanrights.org/en/latest-news/russia-academic-analysis-shows-why-
companies-should-cease-business-activities-to-avoid-corporate-criminal-liability-risks/.
61
Commission Proposal for a Council Decision on adding the violation of Union restrictive measures to
the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union,
COM (2022) 247 of 25 May 2022.
1533
States may already use their criminal law to initiate proceedings against EU-sanctions
violators with the aim to turn frozen assets into forfeited assets. The EU is also likely to
introduce in its sanctions regimes an obligation for targeted persons to report about their assets.
Like in German law, a failure to do so could then also become a criminal office, enlarging the
possibilities to seize assets after legal proceedings.
VI. Mobility Restrictions - Denial of Entry, Airspace, and Port Access
1. Denial of Entry
Under Council Decision 2014/145/CFSP62, the targeted persons are also denied entry into the
European Union. Lacking a specific EU power in this regard, the decisions are directly
implemented at national level. As the decision to admit (or not) foreigners into their territory
generally falls under the sovereignty of each State, such EU decisions do not pose a particular
challenge under international law.
The Council Decision also contains an exception for President Putin and Foreign Minister
Lavrov. According to the two annotations for Points 669 and 670 of the Annex63, Article 1(1)
does not apply for those two persons. Owing to their specific position as Head of State and
Foreign Minister, they are not barred from entering the Union.
2. Denial of Airspace
a) The Belarus case
Already before the Russian invasion of Ukraine, the EU used the denial of airspace as a
sanction. When Belarus forced a flight from Athens to Vilnius to redirect to Minsk on 23 May
2021 on the pretext of a demonstrably false bomb threat in order to arrest an opposition
blogger64, the Council urged the EU Member States on 24 May 2021 to close their airspace to
Belarusian aircraft.65 Two weeks later, on 4 June 2021, the Council took a binding decision to
restrict the entire EU’s airspace:
“
Member States shall deny permission to land in, take off from or overfly their territories
to any aircraft operated by Belarusian air carriers, including as a marketing carrier, in
62
Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of
actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine
(OJ L 78/16 of 17.3.2014).
63
Consolidated Version of Council Decision 2014/145/CFSP,
https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:02014D0145-20220604&qid=1656943250786&from=en.
64
See the full ICAO Investigation Report dated 19 January 2022 here: https://www.politico.eu/wp-
content/uploads/2022/01/19/ICAO-Fact-Finding-Investigation-Report_FR497849.pdf.
65
European
Council
conclusions
on
Belarus,
24
May
2021,
available
at
https://www.consilium.europa.eu/en/press/press-releases/2021/05/24/european-council-conclusions-
on-belarus-24-may-2021/.
1633
accordance with their national rules and laws and consistent with international law, in
particular relevant international civil aviation agreements.” 66
However, Article 5 of the Convention on International Civil Aviation (“Chicago” or “ICAO”
Convention), to which EU Member States as well as Russia are party to, obliges all contracting
States to keep their airspace open to all civilian aircraft of other contracting States.67 Article 9
of the Convention offers the right to close the airspace of a contracting State in part or in whole
only for reasons of military necessity or public safety and only in the case of indiscriminate
application against all aircraft of other contracting States. Therefore, the 4 June 2021 decision
to restrict the EU’s airspace was per se unlawful under international law and may only be
justified as a countermeasure under international law. When Belarus attacked the decision in
ICAO, the Commission instructed its representative to state in the ICAO meeting of 31 January
2022 that not only the States concerned have been directly injured and had a right under
international law to take retaliatory action.68 Rather,
“
Considering also the gravity of the wrongful acts, which put in jeopardy, under false
pretences, the safety and security of civil aviation, for the purposes of repression of the civil
society in Belarus, the effects of the countermeasures are well justified and proportionate to
the injury suffered by the EU MS, not only directly, but also as members of the international
community as a whole”.
This quote makes it clear that the non-directly affected MS have the right to take a third-party
countermeasure and underpins the EU’s right to avail itself for the Union as a whole.
b) The Russian case
In response to the Russian invasion of Ukraine, the ICAO Council condemned the unilateral
violation of Ukraine’s airspace by Russia as a breach of Article 1 of the ICAO Convention.69
On 28 February 2022 the EU closed its entire airspace to Russia. Article 4e (1) of Council
Decision 2014/512 (consolidated) reads:
66
Council Decision (CFSP) 2021/908 of 4 June 2021 amending Decision 2012/642/CFSP concerning
restrictive measures in view of the situation in Belarus, Article 2a(1), (OJ L 197I , 4.6.2021, p. 3–4 and
Council Regulation (EU) 2021/907 of 4 June 2021, amending Regulation (EC) No. 765 concerning
restrictive measures in respect of Belarus, Article 8b(1).
67
Article 5, Convention on International Civil Aviation, Ninth Edition, 2006: “
Each contracting State
agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled
international air services shall have the right, subject to the observance of the terms of this Convention,
to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes
without the necessity of obtaining prior permission, and subject to the right of the State flown over to
require landing.”
68
European Commission, ICAO Council 31 January 2022, European LTT on ICAO Council Paper C-
1528 on the request of the Republic of Belarus to the ICAO Council for its consideration under Article
54 (j) of the Chicago Convention.
69
ICAO Council condemns violation of territorial integrity and airspace of Ukraine, 25 February 2022,
available
at:
https://www.icao.int/Newsroom/Pages/ICAO-Council-condemns-invasion-of-
Ukraine.aspx.
1733
Member States shall, in accordance with their national rules and laws and consistent with
international law, in particular relevant international civil aviation agreements, deny to any
aircraft operated by Russian air carriers, including as a marketing carrier in code-sharing
or blocked-space arrangements, to any Russian-registered aircraft, and to any non-Russian
registered aircraft which is owned or chartered, or otherwise controlled by any Russian
natural or legal person, entity or body, permission to land in, take off from, or overfly the
territory of the Union.70
Importantly, as the EU did not react to a breach vis-à-vis its own interests, but to a breach of
Russia vis-à-vis Ukraine. As the ICAO Convention does not contain a clear-cut provision for
such scenario, this measure may only be justified as a third-party countermeasure under
international law.
3. Denial of Access to Harbours
On 8 April 2022, the Council adopted the following wording in its amending sanction package:
“
Moreover, it is appropriate to prohibit access to ports in the territory of the Union to
vessels registered under the flag of Russia.”
71
In a press release, the Council argued that this restrictive measure “
will limit the options for
Russian industry to obtain key goods. It will disrupt road and maritime trade both to and from
Russia.”72 Certain exemptions for agricultural and food products are included and Member
State may grant derogations under specific circumstances.
While there is no universal convention guaranteeing the free access to the harbours of other
contracting states, such access may be promised under bilateral treaties. As far as the EEAS is
aware, Cyprus has concluded an agreement with Russia on the access of the navy73, whereas
bilateral treaties of Denmark and Malta with Russia concern equal access of civil vessels to
their ports. Against that background, the denial of access to harbours requires a specific
justification under these bilateral treaties, for example for reasons of public policy, if the treaty
70
Article 1(2) of Council Decision 2022/335 of 28 February 2022 (OJ 2022, L 57/4), inserting an Article
4e to Council Decision 2014/512; and Council Regulation (EU) 2022/334 of 28 February 2022 2022
(OJ L 57, 28.2.2022, p. 1–3) inserting an Article 3d to Council Regulation (EU) No 833/2014 concerning
restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.
71
COUNCIL DECISION (CFSP) 2022/578 of 8 April 2022 amending Decision 2014/512/CFSP
concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, Recital
(6) and Article 4ha, (OJ L 111 of 8.4.2022, p.70).
72
Question and answers on the fifth package of restrictive measures against Russia, 8 April 2022,
available at: https://ec.europa.eu/commission/presscorner/detail/en/qanda_22_2333.
73
Cyprus Signs Deal to Let Russian Navy Ships Stop at its Ports, The Wall Street Journal, 25 February
2015,
available
at:
https://www.wsj.com/articles/putin-highlights-closer-russia-cyprus-ties-
1424882012.
1833
so allows.74 Otherwise, the denial of port access may need to be justified under the Vienna
Convention on the Law of Treaties or could be construed as a third party countermeasure.
VII. Media Restrictions - Prohibition of War Propaganda
Finally, the EU started to restrict certain media outlets who are serving the Russian war
propaganda. On 1 March 2022, the EU banned RT/Russia Today and Sputnik from
broadcasting in the EU until 31 July 2022.75 The sixth sanctions package added another three
outlets as of 4 June 2022.
These decisions raise questions of compatibility with the freedom of the press, a fundamental
rights guaranteed by Article 11 of the EU-Charter and Article 10 ECHR. In the case of
Russia
Today France v. Council (the latter being supported by France, Belgium, Lithuania, Estonia,
Poland and Latvia as well as the Commission and the High Representative), the General Court
ruled on 27 July 2022 in favour of the Council and upheld the restrictive measures imposing
a broadcasting ban on Russia Today France.76
The Court was satisfied that Article 29 TEU and 215 TFEU was the only available means to
take action with effect in the entire EU. Therefore, the Council had considerable latitude to
adopt restrictive measures. 77 The limitation of the applicant’s right to be heard can be justified
with regard to the exceptional circumstances of the Russian aggression and the significance of
media outlets in forming a public opinion.78 In its judgment, the Court concluded that the
applicant has engaged in activities of propaganda and disinformation supporting Russian
aggression against Ukraine.79 The Court held that that the limitations of the right to freedom
74
See inter alia the 1998 dispute between Norway and Iceland, both parties to the EEA Agreement at the
time. Norway prima facie breached Article 36 of the EEA Agreement by barring Icelandic ships from
its ports, yet successfully invoked Article 33, to prohibit access to its ports for reasons of public policy:
see https://www.eftasurv.int/cms/sites/default/files/documents/gopro/3598-148885.pdf.
75
Article 4g of Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP
concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L
65, 2.3.2022, p. 5–7), and Article 2f of Council Regulation (EU) 2022/350 of 1 March 2022, amending
Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia's actions destabilising
the situation in Ukraine (OJ L 65, 2.3.2022, p. 1–4).
76
Judgment of the General Court of 27 July 2022, T-125/22,
RT France v. Council, ECLI:EU:T:2022:483.
77
Judgment of the General Court of 27 July 2022, T-125/22,
RT France v. Council, ECLI:EU:T:2022:483,
para. 52.
78
Judgment of the General Court of 27 July 2022, T-125/22,
RT France v. Council, ECLI:EU:T:2022:483,
paras. 75-98, 99.
79
Judgment of the General Court of 27 July 2022, T-125/22,
RT France v. Council, ECLI:EU:T:2022:483,
paras. 172-188.
1933
of expression (Article 11 EU Charter of Fundamental Rights) are proportionate, since they are
temporary and reversible.80
This judgment is all the more important as it may influence future legislative action for the
fight against State-orchestrated disinformation campaigns. It emphasises that the protection of
the right of freedom of expression does not extend to cover disinformation that is aimed at
encroaching on the interest and values of the Union. Disseminating knowingly false
information that, on top of it, is also war-propaganda, does not contribute to the democratic
debate, but on the contrary, undermines it and represents even further reaching menace and
thus should not benefit from protection under the freedom of expression. As RT France has
appealed the judgment, the case is currently pending before the ECJ.
C.
Third Party Countermeasures
Under general international law, the directly affected State can react to the breach of
international law of another State in various manners, including by taking countermeasures.
However, it is less clear under what circumstances third States may be entitled to do the same.
During the COJUR discussions, delegations asked the EEAS to present a brief overview about
relevant State practice in the field. In so doing, it seems useful to distinguish between State
practice before 2001, when the ICL adopted its Articles on State Responsibility81, and the
subsequent practice.
I. State practice until 2001
Literature and state practice on third party countermeasures were sparse until 2001.82
An early example relates to South Africa. In 1960, Ghana and Malaysia imposed a trade
embargo due to the on-going crime of Apartheid on the one hand and specifically in response
to the Sharpeville massacre on the other hand. Over the next four years, seven other States
(Indonesia, Kuwait, Nigeria, Pakistan, Sierra Leone, Tanzania and Uganda) followed,
80
Judgment of the General Court of 27 July 2022, T-125/22,
RT France v. Council, ECLI:EU:T:2022:483,
paras. 192-212, 213.
81
Responsibility of States for Internationally Wrongful Acts 2001, Text adopted by the Commission at its
fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report
covering the work of that session. The report, which also contains commentaries on the draft articles,
appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two). Text reproduced
as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001, and corrected
by document A/56/49(Vol. I)/Corr.4.
82
See e.g. Michael Akehurst,
Reprisals by Third States, 44 British Yearbook of Int. Law (1970), 1-18;
Jonathan Charney,
Third State Remedies in International Law, Michigan Journal of Int. Law, Volume
10, Issue 1, 1989, p. 57; Jochen Frowein,
Reactions by Not Directly Affected States to Breaches of
International Law, RdC 1994-IV, p. 345 (423).
2033
probably inspired by a GA resolution83 or an OAU recommendation84. For their part, Ghana
and Malaysia both acknowledged that the trade embargo violated their respective GATT
obligations towards South Africa, but considered their actions to be lawful. States appear to
have relied on the rationale of the concept of third-party countermeasures and done so in
response to serious breaches of obligations
erga omnes; namely, those concerning apartheid
and fundamental human rights85.
In 1978, the US Congress adopted legislation prohibiting the import of goods from Uganda
and the export of goods and technology to the country. The legislator justified these violations
of the US GATT-commitments in order to “dissociate (the US) from any foreign government
which engages in the international crime of genocide”.86
Following the imposition of martial law in Poland in December 1981, a couple of Western
States (US, UK, France, Netherlands, Switzerland Austria) denied landing rights to
AEROFLOT and LOT in breach of their bilateral air transport agreements.87
The European Community and its Member States also took certain unilateral sanctions which
can be qualified as third-country countermeasures. Among them figure the decision of April
1980 to suspend contracts with Iran after the hostage crisis of 1979 taken in the framework of
European Political Cooperation, a number of Commission decisions during the 1980ies to
withhold development aid to certain African States after military coups or a wave of political
oppression which would normally have been due under the EU-ACP Lomé Conventions, and
the flight ban against the former Yugoslavia in 1998 to counteract grave human rights
violations in Kosovo enacted by the Council88.
Finally, there were two instances where bilateral treaties were suspended by relying on Article
62 VCLT rather than the concept of third country countermeasure. This was the case in 1982,
when the Netherlands suspended a development cooperation treaty with Suriname after a
83
UNGA Resolution 1761 (XVII) of 6 November 1962.
84
OAU-Resolution „A“ of Addis Abbeba, 22-25 May 1963.
85
Dawidowicz (note 41), pp. 116-117.
86
Uganda Embargo Act, Public Law 95–435 of 10 October 1978, United States Statutes at Large
1978, Vol. 92, part 1 (Washington D C , United States Government Printing Office, 1980), pp. 1051–
1053.
87
For details see RGDIP 1982, pp. 603-606 and Dawidowiz (note 41), pp. 133-139.
88
For details of this early EU practice see Frank Hoffmeister,
The Contribution of EU Practice to
International Law in Developments in EU External Relations Law, Oxford Univ. Press 2008, pp. 93-
95.
2133
military coup 89 and in 1991, when the EC suspended its Cooperation agreement with
Yugoslavia. While the Commission argued before the ECJ that the action was justified by both
Article 62 VCLT and general international law on countermeasures90, the ECJ preferred to
apply the
clausula rebus sic stantibus only91.
II. ILC Articles on State Responsibility 2001
Summarizing the above practice, the ILC took a cautious approach on the matter. Some States
and ILC members feared the risk of abuse and were questioning the relationship of collective
countermeasures to UN Security Council resolutions.92 Article 48 of the Articles on State
responsibility reads:
Article 48 - Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility
of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that
State, and is established for the protection of a collective interest of the
group; or
(b) the obligation breached is owed to the international community as
a whole. [emphasis added].
This Article reflects the jurisprudence of the ICJ since the
Barcelona Traction case of 197093,
according which certain obligations have an
erga omnes character. For example, in the 2012
judgment
Belgium v. Senegal, the ICJ held that:
‘
68. […]
All the States parties “have a legal interest” in the protection of the rights
involved […]
These obligations may be defined as “obligations erga omnes partes”
[…]
89
For details see H -H Lindemann,
The repercussions resulting from the violation of human rights in
Surinam on the contractual relations between the Netherlands and Surinam, ZaöRV 1984, p. 64
et seq.
90
See description of the Commission position in the Conclusions of the Advocate General-Jacobs, Case
C-162/96
Racke (1998) ECR I-3688, Rec. 65 of the opinion.
91
ECJ, Case C-162/96
Racke (1998), ECR I-3688, paras. 48-61.
92
Amanda Bills,
The Relationship between Third-party Countermeasures and the Security Council’s
Chapter VII Powers: Enforcing Obligations erga omnes in Internaional Law, NJIL Vol. 89 (2020), 117-
141, p. 118.
93
ICJ,
Barcelona Traction (Belgium v. Spain), Judgment of 5 February 1970, ICJ Reports 1970, p. 3 at
para. 33.
2233
‘
69. […]
It follows that any State party to the Convention may invoke the responsibility
of another State party with a view to ascertaining the alleged failure to comply with
its obligations erga omnes partes, such as those under Article 6, paragraph 2, and
Article 7, paragraph 1, of the Convention, and to bring that failure to an end.’94
However, the ability of a non-directly affected State to invoke the
erga omnes responsibility
of another State does not qualify which type of reactions are allowed under international law.
In the Nicaragua case, the ICJ stated:
‘
249. […]
The acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified proportionate
countermeasures on the part of the State which had been the victim of these acts, namely El
Salvador, Honduras or Costa Rica. They could not justify countermeasures taken by a third
State, the United States, and particularly could not justify intervention involving the use of
force.’95
In this respect, Article 54 of the ILC Articles says:
Article 54 -Measures taken by States other than an injured State
“This chapter does not prejudice the right of any State, entitled under article 48,
paragraph 1, to invoke the responsibility of another State, to take lawful measures
against that State to ensure cessation of the breach and reparation in the interest of
the injured State or of the beneficiaries of the obligation breached.” [emphasis added]
In its commentary the ILC explained:
“[T]he current state of international law on countermeasures taken in the general or
collective interest is uncertain. State practice is sparse and involves a limited number
of States. At present, there appears to be no clearly recognized entitlement of States
referred to in article 48 to take countermeasures in the collective interest.
Consequently, it is not appropriate to include in the present articles a provision
concerning the question whether other States, identified in article 48, are permitted
to take countermeasures in order to induce a responsible State to comply with its
obligations. Instead, chapter II includes a saving clause which reserves the position
and leaves the resolution of the matter to the further development of international
law.”96 [emphasis added]
These provisions neither endorse nor exclude the right of third parties to take countermeasures.
According to some authors, the ILC has prejudiced the right of states under Article 48 to take
94
ICJ,
Questions relating to the obligation to prosecute or extradite (Belgium v Senegal), ICJ Reports
2012, 422, paras. 68-69.
95
ICJ,
Nicaragua (note 18), para 249.
96
Report
of
the
International
Law
Commission
(2001)
A56/10,
p. 139(6),
https://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf.
2333
“lawful measures” because countermeasures are inherently wrongful97, while others consider
that Article 48 neither permits nor prohibits states from taking countermeasures98. In any case,
as the ILC expressly left this question open, it is appropriate to examine further developments
over the last twenty years. The saving clause in Article 54 of the ILC Articles can be
considered as a compromise open to the further development of international law.99
III. State Practice and Developments since 2001
Since 2001, a number of scholars have found additional evidence of countermeasures by third
States or organisations in practice. In 2005,
Tams opined that the ILC “
could have said more”
than it did in Article 54 ARSIWA. 100 However, when codifying the responsibility of
international organisations in 2011, the ILC did not elaborate on the issue any further. It merely
stated that the conditions laid down in Articles 49 to 54 for countermeasures by one State
against another could be applied by analogy to countermeasures by international organisations
against States.101
Against that background, it is important to review newer practice that has materialized in more
recent years.102 The assessment of State practice and
opinio juris concerning third-party
countermeasures raises some legal and political challenges. In order to properly assess this
practice it is necessary to distinguish third-party countermeasures, the suspension and
termination of treaties under Article 60 VCLT (and other treaty-law doctrines), self-defence,
collective non-recognition and non-assistance, and the right to adopt unilateral trade
restrictions based on the national security exception in Article XXI GATT103. The difficulty
in identifying third-party countermeasures is further compounded by the obscurity of practice:
States rarely explain in clear terms which of the aforementioned categories they actually rely
on in a given case. Nevertheless, it seems possible to identify a number of important cases.
97
D. Alland,
Countermeasures of General Interest, EJIL 13 (2002), p. 1221, at pp. 1232-33.
98
L-A. Sicilianos,
The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility, EJIL 13 (2002) p. 1127, pp. 1134-1135.
99
Amanda Bills,
The Relationship between Third-party Countermeasures and the Security Council’s
Chapter VII Powers: Enforcing Obligations erga omnes in Internaional Law, NJIL Vol. 89 (2020), 117-
141, p. 119.
100
Christian Tams,
Enforcing obligations erga omnes in international law, CUP 2005, p. 249.
101
ILC Commentary on the Draft Articles on the Responsibility of International Organisations, ILC
Yearbook 2011 II (2), p. 72, Article 22, Observation (2).
102
Tom Ruys,
Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework, https://www.ohchr.org/sites/default/files/Documents/Issues/UCM/ReportHRC48/Academia/submissio
n-tom-ruys-2.pdf., pp. 23-25 of the manuscript; later published in Larissa van den Herik (ed.), Research
Handbook on UN Sanctions and International Law, Edward Elgar Publishing, 2016.
103
Dawidowicz (note 41), pp. 111-112.
2433
1. Iran 2005
Since the first revelations of Iran’s nuclear development program in 2002, the International
Atomic Energy Agency (IAEA) reported numerous breaches of Iran’s commitments under
Article III of the Non-Proliferation Treaty and its agreement on safeguards. Since 2006, after
the election of President Ahmadinejad, the Security Council imposed severe sanctions on the
country under Chapter VII to “constrain Iran’s development of sensitive technologies in
support of its nuclear and missile programs”104. It also employed targeted sanctions against
persons and entities.
Importantly, the EU and the US have decided to go beyond the UN Security Council
Resolutions and imposed additional measures to put maximum pressure on Iran to end its
nuclear programme. In 2007, the EU targeted additional persons (which were not on the UN
list).105 In 2008, the EU froze assets of Iran’s largest bank (Bank Melli106), and in 2012,
imposed an oil embargo and froze assets of the Iranian national bank107. Further on, the E-3
and High Representative of the EU contributed to the finalisation of the Joint Comprehensive
Action Plan of 2015.108
The 2007 action (additional targets) was considered as suspending the fulfilment of certain
international obligations owed to Iran109, most likely arising under bilateral investment treaties
of certain member States with Iran (such as Austria, Germany and France). However, as Iran’s
breaches were either directly injuring all Parties to the NPT under Article 42 (b)(ii) or owed
to the international community as a whole (Article 48), these sanctions could be seen as (third
party) countermeasures110.
With respect to the 2012 oil embargo and the freezing of the Central Bank’s assets, a similar
infringement of investment guarantees owed to Iran (and even Article VIII(2)(a) IMF Articles
104
See UNSC Res 1737 (2006), recital 8; UNSC Res 1747 (2007), recital 7; UNSC Res 1803 (2008), recital
11; UNSC Res. 1929 (2010).
105
Article 3 of Council Common Position No. 2007/140/CFSP of 27 February 2007, OJ 2007, L 61, p. 49;
Article 7(2) of Council Regulation 423/2007, OJ 2007, L 103, 1.
106
See also ECJ judgment in the case C-124/20
Melli Bank, about the interpretation of the EU’s “blocking
statute” with respect to secondary sanctions imposed the United States.
107
Council Decision 2012/35/CFSP of 23 January 2012, OJ 2012, L 19, 10; Council Regulation 267/20120
of 23 March 2012, OJ 2012, L 88, 1.
108
For details see F. Hoffmeister,
Of Presidents, High Representatives and European Commissioners – the
external representation of the European Union seven years after Lisbon, Europe and the World (2017),
p. 37, at pp. 54-59.
109
N. J. Calamita, Sanctions, Countermeasures and the Iran Nuclear Issue, 42 Vanderbilt Journal of
Transnational
Law
139
(2009),
p.
1939,
at
p.
1397;
available
at
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1401&context=vjtl.
110
Calamita (note 110), pp. 1422-1428 (in favour of Article 42); and pp. 1429-1433 (accepted a
construction under Article 48
arguendo).
2533
of Agreement) was identified111. While admitting the abstract possibility of a third party
countermeasures, one eminent author concluded that the conditions were not met. In particular,
this author questioned the proportionality of the reaction and the possibility of the EU to adopt
countermeasures when the matter is brought before the UN Security Council.112
2. Libya 2011
On 17 February 2011, Libyan security forces killed numerous of protesters in Benghazi who
were demonstrating against Colonel Gaddafi’s regime. This marked the beginning of a series
of similar incidents across Libya. A bloody uprising followed, which soon led to a civil war
in the country.
On 21 February 2011, Switzerland decided with immediate effect to freeze the assets of the
Libyan Central Bank as well as those of several senior Libyan officials involved in the violent
repression of the civilian population, including assets of Colonel Gaddafi, Libya’s Head of
State.113 A day later, the Council of the League of Arab States agreed by unanimous vote to
suspend Libya from its membership in the Arab League – a decision ‘welcomed’ by the UN
Security Council and the General Assembly. Whereas the suspension of Libya could fall under
Article 60 VCLT, the actions of the Member States of the Arab League can be construed as
compliance to the principle of third party countermeasures.114 On 25 February 2011, the
United States decided to freeze with immediate effect the assets of the Central Bank of Libya
as well as those of Colonel Gaddafi and his closest associates in response to the “extreme
measures taken against the people of Libya, including by using weapons of war, mercenaries,
and wanton violence against unarmed civilians, all of which have caused a deterioration in the
security of Libya and pose a serious risk to its stability”.115
For
Dawidowicz, Switzerland and the United States adopted third-party countermeasures
against Libya by freezing the assets of Colonel Gaddafi and the Central Bank of Libya prior
to the enforcement measures taken by the Security Council under Chapter VII of the UN
Charter.116 However, as explained above, that assessment is doubtful as there is no immunity
from prescriptive jurisdiction. More convincing appears to be the position that Arab League
Member States supported the adoption of third-party countermeasures by suspending Libya’s
membership in the Arab League without a proper legal basis. Importantly, Security Council
111
P.-E. Dupont, Countermeasures and Collective Security, The Case of EU Sanctions Against Iran,
Journal of Conflict and Security Law, 17 (2012), at 313-316 (manuscript at pp. 13-14).
112
P.-E. Dupont (note 112), manuscript at p. 30-33.
113
See Swiss Federal Council, ‘
Ordonnance instituant des mesures à l’encontre de certaines personnes
originaires de la Libye’, 21 February 2011.
114
Dawidowicz (note 41), p. 217.
115
See President Obama’s Executive Order 13566 (25 Feb. 2011), ‘
Blocking Property and Prohibiting
Certain
Transactions
Related
to
Libya’,
www.treasury.gov/resource-
center/sanctions/Programs/Documents/2011_libya_eo.pdf.
116
Dawidowicz (note 41), p. 220.
2633
Resolution 1970117, welcoming the unilateral condemnation by the Arab League, passed
unanimously by a vote of 15-0-0118. As it included votes from both the Russian Federation and
the Peoples Republic of China, it can be argued that they tacitly supported the principle of
third party countermeasures in that case.
3. Syria 2011 – Various States
On 9 May 2011, EU Member States responded to the unfolding humanitarian catastrophe by
implementing sanctions on Syria, including an arms embargo, travel bans and the freezing of
assets of several leading regime officials.119 President Al-Assad, Vice-President Al-Sharaa
and Interior Minister Al-Sha’ar followed on 23 May 2011 120 , and their assets were
subsequently frozen also by Australia, Switzerland, Canada, Japan and Turkey. Similar action
was later coordinated by the International Working Group on Sanctions (‘IWGS’) in 2012-
2013, supported by 60 States. However, contrary to the opinion of
Dawidowicz121, these asset
freezes cannot be characterized as third-party countermeasures.
On 12 November 2011, the Council of the League of Arab States suspended Syria’s
membership in the organization. A decision on such a suspension requires a unanimous vote
(with the exception of the State concerned). In this case, Syria, Lebanon and Yemen, voted
against the membership suspension, with Iraq abstaining. The decision to suspend Syria was
thus unlawful both in substantive and procedural terms under Article 18 of the pact of the
League of Arab States. Accordingly, it can be argued in this case that Arab League Member
States expressed their support for the adoption of third-party countermeasures.122
4. Russia 2014 – Western States
On 2 March 2014, leaders of the G7 adopted a statement by which they “
condemn[ed] the
Russian Federation’s clear violation of the sovereignty and territorial integrity of Ukraine, in
contravention of Russia’s obligations under the UN Charter and its 1997 basing agreement
with Ukraine”.123
117
SC Resolution 1970 (2011).
118
Data
provided
by
the
Stockholm
International
Peace
Research
Institute:
https://www.sipri.org/sites/default/files/2016-03/Libya-vote-2011.pdf.
119
See Council Decision 2011/273/CFSP (9 May 2011), OJ 2011 L 121/11 (10 May 2011); Council
Decision 2011/782/CFSP (1 Dec. 2011), OJ 2011 L 319/56 (2 Dec. 2011).
120
See Council Implementing Decision 2011/302/CFSP (23 May 2011), OJ 2011 L 136/91 (24 May 2011).
Also: Declaration by the High Representative for Foreign Affairs and Security Policy, Catherine Ashton,
on behalf of the European Union, on the unfolding situation in Syria (18 May 2011),
www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/cfsp/121684.pdf.
121
Dawidowicz (note 41), p. 222-223 and p. 230.
122
Dawidowicz (note 41), p. 225.
123
G-7 Leaders Statement on Ukraine, 2 March 2014, https://www.bundesregierung.de/breg-en/news/g7-
statement-440208.
2733
Subsequently, on 31 July 2004, the EU adopted a comprehensive sanctions package including
an arms embargo, and export restrictions on dual-use and goods for the oil exploration
industry, as well as financial sanctions124. Switzerland, the US, Canada, Australia, and Japan
also imposed measures against Russia in response to its illegal annexation of Crimea. While
most of the initial sanctions imposed by the EU and its Member States against the Russian
Federation may readily be seen as acts of retorsion, the financial and economic measures that
impede the access of certain goods and services to the EU market needed justification. While
Dawidowicz regards them as third party countermeasures as Articles XXI GATT and XIVa
GATS had not been formally invoked125, the preferable view is to regard them as covered by
the security exceptions (as later confirmed by the ECJ in the
Rosneft case with respect to
Article 99 PCA).
D.
Analysis
Against the more recent practice, it has to be examined whether third party countermeasures
can now be considered part of customary international law (I.). If so, the procedural (II.) and
substantive (III.) requirements need to be briefly outlined.
I. Existence of the rule
Under Article 38 (1)(b) of the ICJ Statute international custom is defined as “evidence of a
general practice accepted as law”. It is hence necessary to establish a widespread practice of
States, supported by an
opinio iuris, in order to establish whether the concept of a third party
countermeasure has by now become a norm of customary international law. Moreover, the
teachings of the most highly qualified professors of international law may be a subsidiary
means for the determination of rules of law (Article 38(1)(d) ICJ-Statute).
1. General practice
One of the arguments made by the ILC in 2001 against the concept was that previous State
practice only involved “a limited number” of States. Indeed, most of the cases quoted by the
ILC at the time involved the Western States (US, Canada, EU, Norway, Switzerland,
Australia). However, as the reactions of African States towards apartheid in South Africa
show, the acceptance of the concept was already wider at the time and continued to grow after
2001126. In the Libya crisis, Arab States became also active, and the countermeasures against
the Syrian regime since 2011 enjoyed cross-regional support. Hence, by now, third party
countermeasures have emanated from States on all continents (with the exception of Latin
124
Council Decision 2014/512/CFSP, OJ 2014 L 229, p. 13 of 31 July 2014; Council
Regulation (EU) No. 833/2014, OJ 2014 L 229, p. 1 of 31 July 2014).
125
Dawidowicz (note 41), p. 235.
126
Christian Tams,
Obligations Erga Omnes in International Law, UN Lecture series International Law,
15 August 2016, UN Video lecture (https://legal.un.org/avl/ls/Tams_IL.html) at minutes 28-29;
Dawidowicz (note 31), pp. 240-243.
2833
America) and from international organisations such as the EU, the AU, the AL and
ECOWAS.127
At the same time, it has to be admitted that the sanctions against Russia in 2014 and 2022 are
mostly applied by a core group of Western States. It follows that still mostly Western States
are applying the concept of third party countermeasures in practice, with occasional followers
from other regions.
2.
Opinio iuris
Even more difficult is the establishment of an
opinio iuris. In almost no case does the official
justification of the legal act mention the right to take countermeasures as a non-directly
affected State. In many cases, the necessity to react to a grave breach of international law is
underlined. In so far as the adopted measures would otherwise be contrary to international law,
it can be assumed that the respective government has invoked the concept as justification128.
At the same time, some States have voiced open criticism against the concept. In the UNGA
6th Committee discussions on the ILC Articles after 2001, China, Russia and several African
and Asian States contended that third-party measures are prone to abuse and should generally
not be accepted129. At the same time, there is little diplomatic protest when a third-party
countermeasure is applied in a specific case, and none of it has been was challenged by the
responsible State in dispute settlement.
Against that background,
Ruys wrote in 2017 “that time may ultimately ripe to shift the debate
from the binary question whether third-party countermeasures are permissible or not, to
defining the possible boundaries of their use”130. After the Russian Federation’s invasion of
Ukraine in 2022, contemporary authors affirm that customary law has evolved, so that third-
party countermeasures against Russia are permitted in response to its violation of the
prohibition on the use of force.131
II. Procedural requirements
According to Article 52 of the ILC Articles on State Responsibility, bilateral countermeasures
need to comply with the following procedural requirements.
Article 52
Conditions relating to resort to countermeasures
127
Ruys (note 103), p. 23 of the manuscript.
128
Dawidowicz (note 41), p.252.
129
Dawidowicz (note 31), pp. 8-11.
130
Ruys (note 103), p. 25 of the manuscript.
131
C. Walter (note 11), p. 479.
2933
1. Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations
under part two;
(b) notify the responsible State of any decision to take countermeasures and offer to
negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures
as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without
undue
delay if:
(a) the internationally wrongful act has ceased; and
(b) the dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute
settlement procedures in good faith.
In the above-mentioned proposal for an EU anti-coercion instrument, the Commission
emphasized the relevance of this norm for the EU. It quoted in particular the need call upon
the responsible State to stop its breach, and the requirement to give prior notice before taking
a countermeasure aimed at obtaining the cessation of the breach or reparation for it.132
As argued by some delegations in COJUR, the same requirements should also be observed in
the case of a third party countermeasure. The reason for this analogy is twofold. Both the
bilateral and the third party countermeasure follow the same enforcement logic: their aim is to
induce the responsible State to cease its wrongful act, which makes it important to notify the
responsible State accordingly of the relevant reasoning (Article 52 (1)). Second, once this aim
is achieved (the wrongful act has ceased and been repaired) or the case is brought to binding
dispute settlement (unilateral enforcement is replaced by another peaceful means), the
countermeasure should stop (Article 52 (3) and Article 53). Importantly, Article 52(2) contains
an exception to the duty of prior notification in situations of urgency.
1. The duty to call upon the responsible state to fulfil its obligations
The first requirement is that before resorting to countermeasures, an injured State or
organisation must call on the responsible State to fulfil its obligations. This requirement is
well established in customary international law, as found by the arbitral tribunal in the
132
COM (2021) 775 final of 8.12.2021, p. 11: Recital 10 of the proposed regulation.
3033
Naulilaa case133 and the ICJ in the
Gabcikovo case134. If the aim of a measure is not directed
at achieving the cessation of the wrongful act, it cannot be qualified as countermeasure.135
From the State practice reviewed, it appears that the invoking States generally comply with
the duty to call upon the responsible State to cease the wrongful act. Such wording is usually
contained in political statements that precede the relevant national, European or international
legal instruments, which may also contain the same message.
2. The duty of prior notification
At the same time, in most cases there is no prior notification, in particular when the
countermeasure takes the form of legislation (including EU sanctions by Council Decisions or
Regulations). Whenever the responsible State contests the act subsequently, the invoking State
must then engage in diplomatic exchanges to justify it by
note verbale or other appropriate
means. Most of the recent third party countermeasures therefore appear to have been taken as
urgent countermeasures under Article 52(2) without prior notice.
In this context, the question arises of how to deal with the situation where an EU legislative
act contains an obligation for Member States to act in a way which would contravene their
own treaty commitments vis-à-vis the responsible State. That scenario is in particular relevant
for EU mobility restrictions, given that some Member States may have bilateral treaty
obligations relating to air or harbour access. In that situation, it seems useful to reinforce the
reasoning of the relevant EU legislation by introducing a recital that the EU measure
constitutes a proportionate reaction to the breach by the responsible States of a norm owed to
the international community as a whole. That reasoning would make it sufficiently clear that
the EU avails itself of the right to take a countermeasure to sanction an
erga omnes breach
with effect for all its Member States.
3. The duty to respect ongoing binding dispute settlement procedures
Finally, it should be noted that a countermeasure is ruled out if the case is pending before an
available dispute settlement body. In such a scenario, the trust to enforce international law is
vested into the judiciary. However, if negotiations are only ongoing 136 or if no dispute
settlement body is available, a countermeasure may be taken.
133
Arbitral Award,
Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South
of Africa (Portugal v. Germany) (Naulilaa), 31 July 1928, 2 RIAA 1011, 1026.
134
ICJ,
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7, 56, para. 84.
135
ICJ,
Interim Accord (Former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December
2011, ICJ Reports 2011, p. 644, at § 165, finding that the Greece’s objection to NATO membership did
not qualify as countermeasure as it did not aim at the cessation of a wrongful act.
136
Arbitral Award,
Case Concerning the Air Service Agreement of 27 march 1946 between the United
States of America and France, 9 December 1978, 54 ILR 304, pp. 339-340.
3133
Also the fact that the Security Council is seized by a matter, does not prevent States from
taking (further) action. In contrast to Article 51 of the UN-Charter, according to which self-
defence ceases when the Security Council has taken necessary measures to maintain
international peace and security, there is no corresponding limitation on the rights of Member
States to use peaceful countermeasures in the interest of the community as a whole. That
conclusion is further supported by the above-mentioned practice, in which many of the
countermeasures exceeded the scope of certain Security Council decisions137. Instead, one
may consider to formally notify third-party countermeasures to the United Nations to
strengthen their acceptance.138
III. Substantive requirements
1. The existence of a wrongful act by the responsible State
The first substantive requirement is the existence of a wrongful act by the responsible State
owed to the international community as a whole under Article 48. There is no doubt that
ius
cogens norm fall within this category. But the range is wider, as already noted by the ICJ in
1970139.
In order to avoid the abuse of the system, a prior political determination about the breach of
the responsible state by a third body is not imperative, but would strengthen the case.
Accordingly, the prior finding of the IAEA about Iran’s NPT breaches140 or the UNGA
resolution ES-11/1 of 1 March 2022 condemning Russia’s aggression improves the legitimacy
of the respective countermeasures141. Similarly, if there are particularly serious or systematic
breaches, a third-party countermeasure may be seen as less controversial.142
2. Proportionality
According to Article 51, any countermeasure must be proportionate and Article 50 lists a
number of obligations that must not be affected by them. These substantive requirements for
137
Dawidowicz (note 41), pp. 255-262.
138
Ruys, (note 103), p. 26 of the manuscript.
139
ICJ,
Barcelona Traction, Judgement of 1970, p. 32, at para. 34: “Such obligations derive, for example,
in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination. Some of the corresponding rights of protection have entered
into the body of general international law (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are
conferred by international instruments of a universal or quasi-universal character.”
140
Calamita (note 110), at p. 1430.
141
C. Walter, (note 11), p. 479.
142
Ruys (note 103), p. 26 of the manuscript.
3233
bilateral countermeasures are equally relevant for third country countermeasures since they
make sure that the unilateral enforcement powers serve to protect the integrity of the
international order and not undermine it by potential abuse.
The proportionality test has been applied by the Court in the
Gabcikovo case143 and presented
in literature144. Importantly, a countermeasure may still be proportionate even after the initial
wrongful act has ceased because the responsible state has not fulfilled its secondary obligation
of providing reparation145. In such a situation, the continuation of the countermeasure must,
though, be re-evaluated.
3. Reversibility
Another important constraint for countermeasures derives from Article 53.
Article 53
Termination of countermeasures
“Countermeasures shall be terminated as soon as the responsible State has complied with its
obligations under part two in relation to the internationally wrongful act.”
The obligation to terminate a countermeasure upon compliance implies that a countermeasure
must be reversible. Indeed, as the ICJ found in the
Gabcikovo case, the reversibility of a
countermeasure constitutes an essential feature thereof.146 One example for a non-reversible
countermeasure is the suspension of environmental obligations.147 Similarly, it would have to
be examined whether countermeasures would exceptionally allow the confiscation of property
(expropriation) as these cannot be reversed.
4. Non-Derogable Rights
Finally, any countermeasure must not interfere with the rights enumerated in Article 50 as
non-derogable. In the list of “untouchable” obligations figures the “protection of fundamental
human rights” (Article 50 (1)(b)). The qualification “fundamental” indicates that only those
human rights are protected from countermeasures for which no derogations are allowed.
Drawing from Article 15 (2) of the European Convention on Human Rights, these are the right
143
ICJ,
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7, 56-57.
144
T. Franck,
On proportionality of Countermeasures in International Law, AJIL 102 (2008), 715.
145
ILC, Article 49, Commentary (8), YBILC 2001, at p. 128.
146
ICJ,
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7, 57, para. 87.
147
Separate Opinion of Judge Bedjaoui,
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports
1997, 7, 134, para. 52; L. Boisson de Chazournes, “Other Non-Derogable Obligations”, in:
Crawford/Pelltet/Olleson (ed). The Law of International Responsibility, OUP 20120, 1205, at p. 1212.
3333
to life, the prohibition of torture and slavery and the prohibition of retroactive criminal
sanctions.
E.
Conclusion
Since 2001, State practice and the
opinio juris on the legality of third party countermeasures
evolved significantly. A clear cross-regional example occurred when the Security Council
unanimously supported unilateral sanctions by the Arab League against Libya in 2011. Certain
sanctions against Iran and Syria also fall within the realm of third party countermeasures.
Against that background, those recent sanctions of the EU against the Russian Federation
which require specific justification under international law (such as the denial of access to
airspace and ports, freezing of assets of Heads of State and government ministers) are on safe
ground. They are taken as a reaction to the breach of an
erga omnes rule by the Russian
Federation. Sanctions in such a case are not only legitimate, but even needed to protect the
integrity of the international public order.
An open question remains how to fulfil best the necessary procedural requirements. While EU
sanctions are often taken in a situation of urgency and therefore do not require prior
notification, they must be properly reasoned to give them a firm and consistent basis in
international law. It is therefore proposed to insert a recital in relevant Council Decisions and
Regulations, according to which the EU action at stake constitutes a proportionate reaction to
the Russian breach of a norm which is owed to the international community as a whole.
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