Crystallizing moment

1. Sanctions v. countermeasures – the semantic debate, possible differences – ILC commentary

2. Is the response of the world – US, EU, UK – are they sanctions or countermeasures? Trade
sanctions not illegal bc security exception clause XXI in WTO treaty – but they all closed their
skies – Chicago convention gives right of overflight to civil aircraft, and denying this would be a
violation – so sanctions have stepped up from retorsion to countermeasures? Freezing assets of
oligarchs, is that legal outside WTO? Not allowing Russian central bank to access its foreign
reserves, is that legal outside WTO?
3. If countermeasures, what does it mean for A.54 arsiwa? Crystallizing moment similar to 9/11?
Past countermeasures by states in the general interest?

The enforcement and implementation problems in international law stem from its nature as a
horizontal, decentralised system among states. Russia’s invasion of Ukraine in violation of the principle
of non-use of force enshrined in Article 2(4) of the United Nations Charter and the resulting response of
countries highlights the fact that even the most serious breaches of peremptory norms, even when
there is something approaching consensus among the international community, are not necessarily or
immediately redressed. The strongest response to the invasion has been in the form of sanctions by
Western states.

The term ‘sanctions’ although widely used in international legal parlance, and even more so given recent
events, is actually of controversial definition. They are most commonly used to refer to measures by the
UN Security Council under Chapter VII of the Charter, as the ILC noted in its commentary to the Draft
Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). The ILC goes on to
distinguish sanctions from retorsions and countermeasures: retorsions are acts not prohibited by
international law, but seen as unfriendly, and sanctions are measures usually taken under the aegis of an
international organization, which may include the use of armed force. Countermeasures, according to
the ILC, are acts ordinarily prohibited by international law (but for the fact that they are in response to a
violation by another state) which may not include the use of armed force. There seems to thus be an
intersection between the scope of ‘sanctions’ and ‘countermeasures’ comprising acts prohibited by
international law not taken under the aegis of an international organization which do not amount to
armed force. The question of whether the measures currently being taken against Russia by the Western
states (the European Union, the United States, and the United Kingdom, among others) fall within this
intersection depends on whether they are prohibited by international law. Therefore, if the measures
would be illegal in peacetime, they would amount to countermeasures within the meaning of the
ARSIWA, since they are prohibited by international law, but for the fact that they are taken in response
to an act of aggression.

The vast majority of sanctions taken against Russia are trade-related sanctions calculated to target the
economy and Russian oligarchs close to Putin. Without going into the details of the sanctions and the
network of existing trade obligations between the countries in question, these measures seem, prima
facie, to be lawful under international law because of the security exception in the WTO Treaty. Article
XXI of the WTO Treaty protects the right of states to take security measures in time of war or other
emergency in international relations, which fits the situation at hand.

However, one category of sanctions may be ordinarily prohibited under international law. On 27 th
February, the European Union announced that EU airspace would be closed to “all Russian-owned,
Russian registered or Russian-controlled aircraft.” The announcement came after several European
states announced their skies closed to Russian aircraft, and was followed by a similar closure of
American skies. This appears to be a prima-facie violation of the Chicago Convention on International
Civil Aviation, which is ratified by all 193 states. Article 5 of the Convention establishes the right of non-
scheduled flight, which allows civil aircraft the right of overflight over the airspace of state parties
without obtaining prior permission. Article 9 contains some exceptions, however – Article 9(a) states
that states may designate ‘prohibited areas’ over which flight may be prohibited or restricted for
reasons of military necessity or public safety. This is not applicable to the abovementioned closure of
skies since it pertains only to specified areas of state territory, and to apply it to the entire airspace of a
state would be to abuse this exception. Article 9(b) permits prohibiting or restricting flight over the
entirety of a state’s territory in exceptional circumstances, during a period of emergency, or in the
interest of public safety provided that this restriction is applied to aircraft of all other states without
distinction of nationality. Since the closure of skies applies only to Russian aircraft, Article 9(b) does not
protect the closure of skies. Therefore, the closure of skies is a measure ordinarily prohibited by
international law which is being taken in response to the violation of international law by Putin’s Russia,
qualifying it as a countermeasure within the meaning of the ARSIWA. The announcement of the
measure in each case was directly linked to Putin’s aggression in Ukraine, clarifying that the measure is
taken in response to the act and has the clearly stated objective of compelling Russia to cease its
aggression. The requirements that countermeasures be proportional to the initial violation as stated in
Article 51 ARSIWA) and reversibility (under Article 49(3) ARSIWA) seem also to be met.

This qualification is not without significance. There is a long history behind the ARSIWA showing the
tension between the necessity for aggravated consequences to gross breaches (such as breaches of jus
cogens norms or erga omnes violations) and the possibility of abuse of such a self-help measure. The
compromise is Article 54 of the ARSIWA which states that the Articles do not prejudice the right of
states mentioned in Article 48(1) (referring to erga omnes and erga omnes partes obligations, and the
accompanying right of non-injured states to invoke responsibility) to invoke the responsibility of a state
in breach of its international obligations and to take ‘lawful measures’ to ensure cessation and
reparation in the interest of the injured state or of the beneficiaries of the obligation breached. In the
commentary to this Article, the ILC notes various instances where it may be said that non-injured states
imposed sanctions or countermeasures, and recognizes that the state of law in regard to the right of
states to take countermeasures in the collective interest is uncertain. Given that the ILC’s mandate
includes codification and progressive development of the law, and that the ILC gave effect to progressive
development in the ARSIWA (most notably for the aggravated regime for jus cogens violations), it is
telling that Article 54 is worded in such an open-ended manner. It seems apparent that the ILC
considered that the inclusion of an entitlement to impose countermeasures in the general interest
would be stretching the limits of even its progressive development mandate. International law has
certainly not been stagnant since 2001 when the Articles were adopted, but the resolve of states to take
such a measure in defense of Ukraine in the face of a blatant violation of the principle of non-use of
force under customary international law as well as the UN Charter may speak volumes for the
development of state practice and the law of countermeasures of collective interest