Introduction
In light of the Russian invasion of Ukraine’s Donetsk, Kherson, Luhansk, and Zaporizhzhia provinces, numerous States, and international organizations such as the US, UK, Canada, EU etc. imposed sanctions against Russia. These sanctions include asset freezes, travel bans, trade embargoes, removal of Russian banks from the SWIFT messaging system, limiting the sale of golden passports etc. The Russian Elites, Proxies, and Oligarchs (REPO) Task Force was created, which allows the cooperation between the G7 countries–Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States – as well as with Australia and the EU, to ensure that the sanctions are implemented.
In this piece, I would be analyzing whether these economic sanctions, among many others, violate the principle of non-intervention, without going into the legality of Russia’s invasion of Ukraine. The question of the legal validity of the unilateral economic sanctions against Russia, specifically from the lens of the non-intervention principle, is relevant because of the Separate Opinion of Judge Robinson in Certain Iranian Assets 2023, where he questions the lawfulness of unilateral economic sanctions, and opines that the non-intervention principle can be one of the criterions to determine its legality. The above judgment, as well as prevalent scholarly opinion about the legality of economic sanctions in general, makes it relevant to discuss the legality of economic sanctions from the lens of the non-intervention principle. In this article, first, I introduce the non-intervention principle, with a special emphasis on one of its elements, i.e., domaine reserve. Then, I examine the policy objectives of imposing economic sanctions, and how these objectives fit in within the legality of the sanctions from a non-intervention perspective.
Non-Intervention Principle and The Domaine Reserve Understanding
As per the decision of the International Court of Justice (“ICJ”) in Nicaragua v. the United States 1986 (“Nicaragua”), the two elements required for the breach of the customary principle of non-intervention are: (1) intervention into matters in which each State is permitted, by the principle of State sovereignty. to decide freely, i.e., matters within a State’s domaine reserve; and (2) using methods of coercion. For the economic sanctions to be violative of the non-intervention principle, both these elements must be satisfied.
While sanctions can, by their very nature, be coercive, the critical question for the purposes of this article, however, is whether the sanctions intervene into Russia’s domaine reserve. While there is no strict definition of what a State’s domaine reserve includes, one could rely on the subsidiary sources of international law provided under Article 38(1)(d) of the ICJ Statute, namely judicial decisions, and writings of highly qualified publicists, to get an understanding of the content of the domaine reserve of a State. Firstly, as per the Nationality Decrees Advisory Opinion, matters solely within the domestic jurisdiction of a State includes certain matters that “are not, in principle, regulated by international law”. Further, as per Judges Bruno Simma and Georg Nolte’s commentary on Article 2(7) of the United Nations Charter, the “domestic jurisdiction” of States includes “areas which are not even prima facie affected by rules of international law”. Their work further notes that “the fact that the continuance of the particular situation was likely to endanger the maintenance of international peace removed the matter from domestic jurisdiction.”
This understanding of the domaine reserve of a State is extremely important while assessing the legality of the economic sanctions imposed against Russia from the lens of the non-intervention principle. Essentially, as per this understanding, if the sanctions are imposed upon Russia to make Russia comply with its obligations governed by international law, such sanctions would not be an interference into Russia’s domaine reserve. At this point, it is important to take a step back and analyse the policy objective of economic sanctions in general, and economic sanctions against Russia in specific.
Policy Objective of Sanctions
Economic sanctions are generally imposed to deter a State from breaching its international law obligations, or incentivising them to comply with the same. There is an existence of widespread state practice on the imposition of unilateral economic sanctions against States to seek such compliance from the sanctioned states. For example, the sanctions imposed by Saudi Arabia, UAE, Bahrain and Egypt against Qatar, to deter its support to Islamist Extremist organisations; sanctions imposed by the EU, Canada, the US, and the UK against China for the human rights violations of the Uyghurs and other Muslim ethnic minorities; the sanctions imposed by the EU, Australia, the US, the UK, Hong Kong, Japan, and Germany against South Africa in relation to the Apartheid, and many more similar sanctions regimes. In the case at hand, it can be noted from the public statements of the sanctioning states such as the US, the UK, and the EU that the sanctions are imposed to dissuade Russia from continuing its war of aggression against Ukraine, to cut off Russia’s ability to continue its actions, and to make Russia comply with its obligations under international law, such as the obligation to not use force (Article 2(4), UN Charter).
Whether The Russian Sanctions Violate The Non-Intervention Principle
Keeping in mind the general policy objectives of economic sanctions, as well as the reasons cited for the imposition of sanctions against Russia in this specific scenario, it can be observed that the economic sanctions do not concern matters which are “not even prima facie affected by the rules of international law”. Instead, they are categorically connected to the international law obligations of Russia, as they are imposed to make Russia cease, or impair Russia’s ability to continue, its invasion of Ukraine. Whether Russia is legally justified in invading Ukraine or not is a different question altogether, and it has no bearing on the legality of the sanctions. However, the fact that the Russian invasion of Ukraine is a question of international law, is sufficient to remove it from its domaine reserve. Therefore, the fact that the sanctions are imposed against Russia to influence it to do something or refrain from doing something, which is not within the domaine reserve of Russia, makes the sanctions in compliance with the non-intervention principle.
Whether the sanctioning states are using methods of coercion against Russia now becomes irrelevant, as, for a claim of non-intervention to be successful, the coercion must be related to matters which are within a State’s domaine reserve. As the economic sanctions do not interfere with matters within Russia’s domaine reserve,the sanctions are not violative of the non-intervention principle. In Nicaragua, the ICJ opined that the United States’ actions on the economic plane, such as cutting off economic aid and reducing import quotas of sugar, is not a violation of the non-intervention principle (paragraph 245). While the ICJ did not elaborate upon the reasons for the same, I believe that this understanding of domaine reserve might have been one of the factors supporting their decision.
Conclusion
A natural concern with this line of argument might be that in a globalised world, many areas are “affected by the rules of international law”, which would narrow the scope of the non-intervention principle. This, while being true, has little bearing on the legality of the argument, and as Judge Trindade notes, the “reserved domain of States is nowadays undergoing a continuing process of reduction”. Examples of matters still within the domaine reserve of a State may include the choice of the government structure, as noted in Nicaragua or the grant of nationality to individuals. Further, this analysis of the legality of the unilateral economic sanctions with respect to the non-intervention principle is without prejudice to legality of the sanctions from the lens of other international law obligations of the sanctioning states, such as the human rights obligations, and the contours of the proportionality in imposing the sanctions. Thus, while the unilateral economic sanctions against Russia might be in violation of any other international law obligation of the sanction states, I argue that they are not in violation of the non-intervention principle.
Aryan Tulsyan is a fourth-year law student at Jindal Global Law School.
Image: Peter Schrank for The Economist.
Jindal Forum for International and Economic Laws 